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Rules vs. Discretion Historically Contemplated

Here is a new concluding section which I have just written for my paper “Rules versus Discretion in Monetary Policy: Historically Contemplated” which I spoke about last September at the Mercatus Confernce on Monetary Rules in a Post-Crisis World. I have been working a lot on the paper over the past month or so and I hope to post a draft soon on SSRN and it is now under review for publication. I apologize for having written very little in past month and for having failed to respond to any comments on my previous posts. I simply have been too busy with work and life to have any energy left for blogging. I look forward to being more involved in the blog over the next few months and expect to be posting some sections of a couple of papers I am going to be writing. But I’m offering no guarantees. It is gratifying to know that people are still visiting the blog and reading some of my old posts.

Although recognition of a need for some rule to govern the conduct of the monetary authority originated in the perceived incentive of the authority to opportunistically abuse its privileged position, the expectations of the public (including that small, but modestly influential, segment consisting of amateur and professional economists) about what monetary rules might actually accomplish have evolved and expanded over the course of the past two centuries. As Laidler (“Economic Ideas, the Monetary Order, and the Uneasy Case for Monetary Rules”) shows, that evolution has been driven by both the evolution of economic and monetary institutions and the evolution of economic and monetary doctrines about how those institutions work.

I distinguish between two types of rules: price rules and quantity rules. The simplest price rule involved setting the price of a commodity – usually gold or silver – in terms of a monetary unit whose supply was controlled by the monetary authority or defining a monetary unit as a specific quantity of a particular commodity. Under the classical gold standard, for example, the monetary authority stood ready to buy or sell gold on demand at legally determined price of gold in terms of the monetary unit. Thus, the fixed price of gold under the gold standard was originally thought to serve as both the policy target of the rule and the operational instrument for implementing the rule.

However, as monetary institutions and theories evolved, it became apparent that there were policy objectives other than simply maintaining the convertibility of the monetary unit into the standard commodity that required the attention of the monetary authority. The first attempt to impose an additional policy goal on a monetary authority was the Bank Charter Act of 1844 which specified a quantity target – the aggregate of banknotes in circulation in Britain – which the monetary authority — the Bank of England – was required to reach by following a simple mechanical rule. By imposing a 100-percent marginal gold-reserve requirement on the notes issued by the Bank of England, the Bank Charter Act made the quantity of banknotes issued by the Bank of England both the target of the quantity rule and the instrument by which the rule was implemented.

Owing to deficiencies in the monetary theory on the basis of which the Act was designed and to the evolution of British monetary practices and institution, the conceptual elegance of the Bank Charter Act was not matched by its efficacy in practice. But despite, or, more likely, because of, the ultimate failure of Bank Charter Act, the gold standard, surviving recurring financial crises in Great Britain in the middle third of the nineteenth century, was eventually adopted by many other countries in the 1870s, becoming the de facto international monetary system from the late 1870s until the start of World War I. Operation of the gold standard was defined by, and depended on, the observance of a single price rule in which the value of a currency was defined by its legal gold content, so that corresponding to each gold-standard currency, there was an official gold price at which the monetary authority was obligated to buy or sell gold on demand.

The value – the purchasing power — of gold was relatively stable in the 35 or so years of the gold standard era, but that stability could not survive the upheavals associated with World War I, and so the problem of reconstructing the postwar monetary system was what kind of monetary rule to adopt to govern the post-war economy. Was it enough merely to restore the old currency parities – perhaps adjusted for differences in the extent of wartime and postwar currency depreciation — that governed the classical gold standard, or was it necessary to take into account other factors, e.g., the purchasing power of gold, in restoring the gold standard? This basic conundrum was never satisfactorily answered, and the failure to do so undoubtedly was a contributing, and perhaps dominant, factor in the economic collapse that began at the end of 1929, ultimately leading to the abandonment of the gold standard.

Searching for a new monetary regime to replace the failed gold standard, but to some extent inspired by the Bank Charter Act of the previous century, Henry Simons and ten fellow University of Chicago economists devised a totally new monetary system based on 100-percent reserve banking. The original Chicago proposal for 100-percent reserve banking proposed a monetary rule for stabilizing the purchasing power of fiat money. The 100-percent banking proposal would give the monetary authority complete control over the quantity of money, thereby enhancing the power of the monetary authority to achieve its price-level target. The Chicago proposal was thus inspired by a desire to increase the likelihood that the monetary authority could successfully implement the desired price rule. The price level was the target, and the quantity of money was the instrument. But as long as private fractional-reserve banks remained in operation, the monetary authority would lack effective control over the instrument. That was the rationale for replacing fractional reserve banks with 100-percent reserve banks.

But Simons eventually decided in his paper (“Rules versus Authorities in Monetary Policy”) that a price-level target was undesirable in principle, because allowing the monetary authority to choose which price level to stabilize, thereby favoring some groups at the expense of others, would grant too much discretion to the monetary authority. Rejecting price-level stabilization as monetary rule, Simons concluded that the exercise of discretion could be avoided only if the quantity of money was the target as well as the instrument of a monetary rule. Simons’s ideal monetary rule was therefore to keep the quantity of money in the economy constant — forever. But having found the ideal rule, Simons immediately rejected it, because he realized that the reforms in the financial and monetary systems necessary to make such a rule viable over the long run would never be adopted. And so he reluctantly and unhappily reverted back to the price-level stabilization rule that he and his Chicago colleagues had proposed in 1933.

Simons’s student Milton Friedman continued to espouse his teacher’s opposition to discretion, and as late as 1959 (A Program for Monetary Stability) he continued to advocate 100-percent reserve banking. But in the early 1960s, he adopted his k-percent rule and gave up his support for 100-percent banking. But despite giving up on 100-percent banking, Friedman continued to argue that the k-percent rule was less discretionary than the gold standard or a price-level rule, because neither the gold standard nor a price-level rule eliminated the exercise of discretion by the monetary authority in its implementation of policy, failing to acknowledge that, under any of the definitions that he used (usually M1 and sometimes M2), the quantity of money was a target, not an instrument. Of course, Friedman did eventually abandon his k-percent rule, but that acknowledgment came at least a decade after almost everyone else had recognized its unsuitability as a guide for conducting monetary policy, let alone as a legally binding rule, and long after Friedman’s repeated predictions that rapid growth of the monetary aggregates in the 1980s presaged the return of near-double-digit inflation.

However, the work of Kydland and Prescott (“Rules Rather than Discretion: The Inconsistency of Optimal Plans”) on time inconsistency has provided an alternative basis on which argue against discretion: that the lack of commitment to a long-run policy would lead to self-defeating short-term attempts to deviate from the optimal long-term policy.[1]

It is now I think generally understood that a monetary authority has available to it four primary instruments in conducting monetary policy, the quantity of base money, the lending rate it charges to banks, the deposit rate it pays banks on reserves, and an exchange rate against some other currency or some asset. A variety of goals remain available as well, nominal goals like inflation, the price level, or nominal income, or even an index of stock prices, as well as real goals like real GDP and employment.

Ever since Friedman and Phelps independently argued that the long-run Phillips Curve is vertical, a consensus has developed that countercyclical monetary policy is basically ineffectual, because the effects of countercyclical policy will be anticipated so that the only long-run effect of countercyclical policy is to raise the average rate of inflation without affecting output and employment in the long run. Because the reasoning that generates this result is essentially that money is neutral in the long run, the reasoning is not as compelling as the professional consensus in its favor would suggest. The monetary neutrality result only applies under the very special assumptions of a comparative static exercise comparing an initial equilibrium with a final equilibrium. But the whole point of countercyclical policy is to speed the adjustment from a disequilbrium with high unemployment back to a low-unemployment equilibrium. A comparative-statics exercise provides no theoretical, much less empirical, support for the proposition that anticipated monetary policy cannot have real effects.

So the range of possible targets and the range of possible instruments now provide considerable latitude to supporters of monetary rules to recommend alternative monetary rules incorporating many different combinations of alternative instruments and alternative targets. As of now, we have arrived at few solid theoretical conclusions about the relative effectiveness of alternative rules and even less empirical evidence about their effectiveness. But at least we know that, to be viable, a monetary rule will almost certainly have to be expressed in terms of one or more targets while allowing the monetary authority at least some discretion to adjust its control over its chosen instruments in order to effectively achieve its target (McCallum 1987, 1988). That does not seem like a great deal of progress to have made in the two centuries since economists began puzzling over how to construct an appropriate rule to govern the behavior of the monetary authority, but it is progress nonetheless. And, if we are so inclined, we can at least take some comfort in knowing that earlier generations have left us a lot of room for improvement.

Footnote:

[1] Friedman in fact recognized the point in his writings, but he emphasized the dangers of allowing discretion in the choice of instruments rather than the time-inconsistency policy, because it was only former argument that provided a basis for preferring his quantity rule over price rules.

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A Tale of Three Posts

Since I started blogging in July 2011, I have published 521 posts (not including this one). A number of my posts have achieved a fair amount of popularity, as measured by the number of views, which WordPress allows me to keep track of. Many, though not all, of my most widely viewed posts were mentioned by Paul Krugman in his blog. Whenever I noticed an unusually large uptick in the number of viewers visiting the blog, I usually found Krugman had linked to my post, causing a surge of viewers to my blog.

The most visitors I ever had in one day was on August 7, 2012. It was the day after I wrote a post mocking an op-ed in the Wall Street Journal by Arthur Laffer (“Arthur Laffer, Anti-Enlightenment Economist”) in which, based on some questionable data, and embarrassingly bad logic, Laffer maintained that countries that had adopted fiscal stimulus after the 2008-09 downturn had weaker recoveries than countries that had practiced fiscal austerity. This was not the first or last time that Krugman linked to a post of mine, but what made it special was that Krugman linked to it while he on vacation, so that for three days, everyone who visited Krugman’s blog found his post linking to my post, so that on August 7 alone, my post was viewed 7885 times, with 3004 viewing the post on August 8, 1591 on August 9, and 953 on August 10. In the entire month of August, the Laffer post was viewed 15,399 times. To this day, that post remains the most viewed post that I have ever written, having been viewed a total 17,604 times.

As you can see, the post has not maintained its popular appeal, over 87 percent of all views having occurred within three and a half weeks of its having been published. And there’s no reason why it should have retained its popularity. It was a well-written post, properly taking a moderately well-known right-wing economist to task for publishing a silly piece of ideological drivel in a once-great newspaper, but there was nothing especially profound or original about it. It was just the sort of post that Krugman loves to link to, and I was at the top of his blog for three days before he published his next post.

Exactly a year and a half later, February 6, 2014, I wrote another post (“Why Are Wages Sticky?“) that Krugman mentioned on his blog. I wasn’t mocking or attacking anyone, but suggesting what I think is an original theoretical explanation for why wages are more sticky than most other prices, while also reminding people that in the General Theory, Keynes actually tried to explain why wage stickiness was not an essential element of his theoretical argument for the existence of involuntary unemployment. Because it wasn’t as polemical as the earlier post, and because I didn’t have Krugman’s blog all to myself for three days, Krugman’s link did not generate anywhere near the traffic for this post that it did for the Laffer post. The day that Krugman linked to my post, February 7, it was viewed by 1034 viewers (333 of whom were referred by Krugman). Very good, but nowhere near the traffic I got a year and a half earlier. For the entire month of February, the post was viewed 2145 times. Again, that’s pretty good, but probably below average for a post to which Kruman posted a link. But the nice thing about the wage stickiness post is that although the traffic to that post dropped off over the next few months, the decline was not nearly as precipitous as dropoff in traffic to the Laffer post. During all of 2014, wage-stickiness post was viewed a total of 6622 times.

What I also noticed was that after traffic gradully dropped off in the months after February, traffic picked up again in September and again in October before dropping off slightly in December and January,  only to pick up again in February. That pattern, which has continued ever since, suggests to me that somehow econ students, on their own or perhaps at the suggestion of their professors, are looking up what I had to say about wage stickiness. Here is a WordPress table tracking monthly views of this post.

So unlike the Laffer post, the vast majority of the visits to the wage-stickiness post (almost 88%) have occurred since the month in which it was published. So for about two years I have been watching the visits to my wage-stickiness post gradually move up in the rankings of my all-time most viewed posts until I could announce that it had eclipsed the fluke Laffer post as my number one post. The price-stickiness post is now within less than fifty views of passing the Laffer post. Yes, I know it’s not a big deal, but I feel good about it.

But over the past six months, suddenly since October, a third post (“Gold Standard or Gold Exchange Standard: What’s the Difference?“), originally published on July 1, 2015, has been attracting a lot of traffic. When first published, it was moderately successful, drawing 569 visits on July 2, 2015, which is still the most visits it has received on any single day, mostly via links from Mark Toma’s blog and Brad DeLong’s blog. The post was not terribly original, but I think it did a nice job of describing that evolution of the gold standard from an almost accidental and peculiarly British, institution into a totem of late nineteenth-century international monetary orthodoxy, whose principal features remain till this day surprisingly obscure even to well trained and sophisticated monetary economists and financial experts.

And I also tried to show that the supposed differences between the pre-World-War I gold standard and the attempted and ultimately disastrous resurrection of the gold standard (GS 2.0) in the 1920s in the form of what was called a gold-exchange standard were really pretty trivial. So if the gold standard failed when it was reconstituted after World War I, the reason was not that what was tried was not the real thing. It was because of deeper systemic problems that had no direct connection to the nominal difference between the original gold standard and the gold exchange standard. I cconclluded the post with three lengthy quotations from J. M. Keynes’s first book on economics Indian Currency and Finance, which displayed an excellent understanding of the workings of the gold standard and the gold exchange standard, the latter having been the system by which India was linked to gold while under British control before World War I. Here is the WordPress table tracking monthly views of my post on the gold exchange standard.

The number of views this month alone is a staggering amount of traffic for any post — the second most views in a month for any post I have written. And what is more amazing is that the traffic has not been driven by links from other blogs, but has been driven, as best as I can tell, at least partially, by search engines.

The other amazing thing about the burst of traffic to this post is that most of the visitors seem to be coming from India. Over the past 30 days since February 28, this blog has been viewed 17,165 times. The most-often viewed post in that time period was my gold-exchange standard post, which was viewed 7385 times, i.e., over 40% of all views were of that one single post. In the past 30 days, my blog was viewed from India 6446 times while my blog was viewed from the United States only 4863 times. Over the entire history of this blog, about 50% of views have been from within the US. So India is clearly where it’s at now.

Now I know that the Indian monetary system was implicated in this post owing to my extended quotation from Keynes’s book, but that reference is largely incidental. So I am at a loss to explain why all these Indian visitors have been attracted to the blog, and why the attraction seems to be growing exponentially, though I suspect that traffic may have peaked over the last week.

At any rate here is how a WordPress table with my 11 most popular posts (as of today at 3:07 pm EDST).

So, as I write this it is not clear whether my hopes that my price-stickiness post will become my all-time most viewed post will ever come to pass, because my gold exchange standard post may very well pass it before it passes the Laffer post. Even so, over the very long run, I still have a feeling that the wage stickiness post will eventually come out on top. We shall see.

At any rate, if you have ever viewed either one of those posts in the past, I would be interested in hearing from you how you got to it.

PS I realized that, by identifying Paul Krugman’s blog as the blog from which many of my most popular posts have received the largest number of viewers, I inadvertently slighted Mark Thoma’s indispensible blog (Economistsview.typepad.com), which really is the heart and soul of the econ blogosphere. I just checked, and I see that since my blog started in 2011, over 79,000 viewers have visited my blog via Mark’s blog compared to 53,000 viewers who have visited via Krugman. And I daresay that when Krugman has linked to one of my posts, it’s probably only after he followed Thoma’s link to my blog, so I’m doubly indebted to Mark.

Deconstructing Judge Bybee’s Disingenuous Dissent

On January 27, 2017, Executive Order 13769 was issued; among other things the order instructed cabinet secretaries to stop immigration from seven previously identified countries (Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen), the officials being authorized to issue exemptions on a case-by-case basis. The order was immediately challenged in a number of suits in the federal district courts, with at least one court (in Boston) upholding the order. However, the court in the Western district of Washington, finding that the order was likely to be ruled unconstitutional in a trial on the merits, issued a temporary restraining order (TRO) blocking the government from enforcing the order. The government immediately appealed the TRO to the Ninth Circuit Court of Appeals. A three-judge panel of the court heard the appeal, and unanimously dismissed the government’s request for a stay of the TRO in a per curiam decision. Rather than appeal the decision of the 3-judge panel to the full court of appeals, or to the Supreme Court, the government chose to withdraw the initial order, mooting the decision, and began to redraft the order to address the defects in the original order identified by the district court trial judge and the 3-judge panel of the Ninth Circuit.

The opinion of the 3-judge panel upholding the TRO, focused on three provisions of the order: first the 120-day ban on entry into the US by any nationals from the seven listed countries, including nationals who are legal permanent residents, holders of green cards, or other valid non-immigrant visas permitting them to work or reside in the US, second the suspension for 120 days of the refugee resettlement program for nationals of the seven listed countries, and, upon completion of the 120-day period, the prioritization of granting refugee status to religious minorities (i.e., non-Muslims) from those countries, and third, the indefinite suspension of all Syrians from the refugee resettlement program.

Although the cause of action underlying the Washington case was removed by the withdrawal of executive order 13769, the decision of the 3-judge panel remains valid and may be cited as authority by other courts. However, one (unnamed) judge on the Ninth Circuit moved for the opinion to be vacated, a technical term meaning that the decision and the opinion are reduced to the approximate status of, say, a law review article, but become devoid of any precedential authority. A motion by a judge on the court of appeals to vacate a decision is typically not made unless a judge wants to signal his or her strong disagreement with the decision, and the opinion written by Judge Jay Bybee of the Ninth Circuit and concurred in by four other judges of the Ninth Circuit, including the former Chief Judge, Alex Kozinski.

The main points of the opinion of the 3-judge panel were: 1) the states of Washington and Minnesota had standing to act as plaintiffs on behalf of resident aliens and on behalf of citizens whose rights or interests were incidentally harmed by the executive order; 2) the executive order was subject to judicial review notwithstanding broad Constitutional powers assigned to the executive branch in matters of foreign policy and explicit grants of authority by Congress over immigration policy; 3) the TRO issued by the district court was a procedural order based on a finding by the court that the plaintiffs had established a substantial likelihood of success at trial; 4) in seeking to stay the TRO, the government bore the burden of rebutting the decision of the trial court that plaintiffs would prevail on the merits, which could be done either by proving that the wrong standard of judicial review was applied, or by showing that there was a compelling national security justification for the order; 5) the district court was correct in ruling that the plaintiffs had a strong likelihood of success in establishing that the Constitutionally granted rights of due process to which nationals from the seven listed countries who were either legal resident aliens, green-card holders, or holders of valid travel visas are entitled had been violated by the executive order; 6) the likelihood that claims by plaintiffs that they were victims of religious discrimination would be upheld is not clear, but a likelihood of success in establishing their due-process claims having been established, plaintiffs could continue to raise their religious discrimination claims in subsequent proceedings.

In his opinion arguing for the decision and opinion of the 3-judge panel to be vacated, Judge Bybee focused his attention primarily on the standard under which Executive Order 13769 may properly be reviewed. The key point of contention is whether the Supreme Court’s decision in Mandel v. Kleindienst sets the limits to what factors a court may take into consideration in reviewing the Executive Order, the failure of the 3-judge panel to abide by the Mandel standard constituting the fundamental error justifying the panel’s per curiam opinion to be vacated. But before considering the relevance of Mandel v. Kleindienst to the Washington case, I want to take note of some of Judge Bybee’s remarks about the Constitutional status of aliens and the rights to which they are entitled.

Having acknowledged that decisions by the government in the fields of foreign affairs and immigration policy are not entirely beyond the scope of judicial review, Judge Bybee asks how the requirements of judicial review can be reconciled with the deference owed to the political branches in those areas. He responds by invoking an old case:

The Supreme Court has given us a way to analyze these knotty questions, but it depends on our ability to distinguish between two groups of aliens: those who are present within our borders and those who are seeking admission. As the Court explained in Leng May Ma v. Barber,

It is important to note at the outset that our immigration laws have long made a distinction between those aliens who have come to our shores seeking admission, . . . and those who are within the United States after an entry, irrespective of its legality. In the latter instance the Court has recognized additional rights and privileges not extended to those in the former category who are merely “on the threshold of initial entry.” 357 U.S. 185, 187 (1958) (quoting Mezei, 345 U.S. at 212). (pp. 10-11)

The panel did not recognize that critical distinction and it led to manifest error.

This is a quite remarkable assertion by Judge Bybee, because two paragraphs earlier, criticizing the 3-judge panel for having merely paid lip-service to the deference owed to the President in the field of foreign affairs, Judge Bybee commented acidly:

The panel began its analysis from two important premises: first, that it is an “uncontroversial principle” that we “owe substantial deference to the immigration and national security policy determinations of the political branches,” 847 F.3d at 1161; second, that courts can review constitutional challenges to executive actions, see id. at 1164. I agree with both of these propositions. Unfortunately, that was both the beginning and the end of the deference the panel gave the President. (p. 9)

A rather peculiar criticism for Judge Bybee to have made inasmuch as his invocation of the critical distinction between aliens coming to our shores seeking admission and those already within the US after entry is both the beginning and the end of his own recognition of that distinction. But aside from its peculiarity, the criticism was completely misplaced, the distinction between two classes of aliens actually being central to the reasoning by which the panel justified its opinion.

The bedrock of Judge Bybee’s dissent rests is the case Kleindienst v. Mandel decided in 1972. Before Mandel, the doctrine of Consular Nonreviewability was absolute. Thus, in Knauff v. Shaughnessy the Supreme Court rejected the appeal of a former American soldier who wanted to bring his German wife to America under the War Brides Act. His wife’s application for a visa having been denied on the basis of confidential undisclosed information transmitted to the counselor official processing Mrs. Knauff’s visa application, Mr. Knauff filed suit seeking judicial review of the consular decision. The Court ruled that, as an alien applying for admission to the United States, Mrs. Knauff had no due-process claim for a review of the consular decision. The best commentary on the Court’s reprehensible decision was delivered by Justice Jackson in his dissenting opinion (which follows Justice Frankurter’s dissent in the link). “Security is like liberty” wrote Justice Jackson, “in that many are the crimes committed in its name.”

In Mandel, the doctrine of consular nonreviewability was extended, and modified ever-so slightly, to take into account not the non-existent right to due process of non-resident aliens, but the implicated rights of American citizens claiming some injury as a result of the consular official’s rejection of the alien’s visa application. Mandel, a Marxist journalist and scholar invited to speak at an academic conference, had unsuccessfully applied for a visa to enter the United States to attend the conference, his application having been denied by a consular official. In an earlier visit to the US to lecture and participate in academic conferences, Mandel had made an unscheduled appearance not authorized by his visa. Mandel and co-plaintiffs brought suit against Richard Kleindienst to require him to grant a waiver to the denial of Mandel’s visa request on the grounds that denial of Mandel’s request had violated the First and Fifth Amendment rights, not of Mandel, but of the US citizens who had invited him to participate in their conference. Mandel is, sadly, a well-established precedent, but its holding is orthogonal to the point of law – the rights to due process of aliens legally present within our borders – for which Judge Bybee invokes its undeserved authority.

Having both acknowledged and lamented Mandel’s status as an authoritative precedent on which much current immigration law depends, I will digress briefly to that a fair reading of the dissents by Justice Douglas and especially Justice Marshall ought to create substantial doubt in the mind of any disinterested reader that the case was correctly decided. Justice Marshall’s powerful and eloquent dissent deserves particular attention.

Today’s majority apparently holds that Mandel may be excluded and Americans’ First Amendment rights restricted because the Attorney General has given a “facially legitimate and bona fide reason” for refusing to waive Mandel’s visa ineligibility. I do not understand the source of this unusual standard. Merely “legitimate” governmental interests cannot override constitutional rights. Moreover, the majority demands only “facial” legitimacy and good faith, by which it means that this Court will never “look behind” any reason the Attorney General gives. No citation is given for this kind of unprecedented deference to the Executive, nor can I imagine (nor am I told) the slightest justification for such a rule.

Even the briefest peek behind the Attorney General’s reason for refusing a waiver in this case would reveal that it is a sham. The Attorney General informed appellees’ counsel that the waiver was refused because Mandel’s activities on a previous American visit “went far beyond the stated purposes of his trip . . . and represented a flagrant abuse of the opportunities afforded him to express his views in this country.” App. 68. But, as the Department of State had already conceded to appellees’ counsel, Dr. Mandel “was apparently not informed that [his previous] visa was issued only after obtaining a waiver of ineligibility and therefore [Mandel] may not have been aware of the conditions and limitations attached to the [previous] visa issuance.” App. 22. There is no basis in the present record for concluding that Mandel’s behavior on his previous visit was a “flagrant abuse” — or even willful or knowing departure — from visa restrictions. For good reason, the Government in this litigation has never relied on the Attorney General’s reason to justify Mandel’s exclusion. In these circumstances, the Attorney General’s reason cannot possibly support a decision for the Government in this case. But without even remanding for a factual hearing to see if there is any support for the Attorney General’s determination, the majority declares that his reason is sufficient to override appellees’ First Amendment interests.

Thus, the Mandel court’s own invocation of the “facially legitimate and bona fide reason” by which it justified the government’s refusal to grant Mandel a visa was itself neither facially legitimate nor bona fide, but a flagrant exercise of bad faith by the majority, invoking a made-up and pretextual justification for the refusal to grant Mandel a visa that even the government had not offered as a justification of its position. After disposing of this sham argument, Justice Marshall addressed the heart of the majority opinion, the broad grant of power to the Executive to exclude whole classes of aliens from the US.

The heart of appellants’ position in this case . . . is that the Government’s power is distinctively broad and unreviewable because “the regulation in question is directed at the admission of aliens.” Brief for Appellants 33. Thus, in the appellants’ view, this case is no different from a long line of cases holding that the power to exclude aliens is left exclusively to the “political” branches of Government, Congress, and the Executive.

These cases are not the strongest precedents in the United States Reports, and the majority’s baroque approach reveals its reluctance to rely on them completely. They include such milestones as The Chinese Exclusion Case, 130 U.S. 581 (1889), and Fong Yue Ting v. United States, 149 U.S. 698 (1893), in which this Court upheld the Government’s power to exclude and expel Chinese aliens from our midst.

But none of these old cases must be “reconsidered” or overruled to strike down Dr. Mandel’s exclusion, for none of them was concerned with the rights of American citizens. All of them involved only rights of the excluded aliens themselves. At least when the rights of Americans are involved, there is no basis for concluding that the power to exclude aliens is absolute. “When Congress’ exercise of one of its enumerated powers clashes with those individual liberties protected by the Bill of Rights, it is our ‘delicate and difficult task’ to determine whether the resulting restriction on freedom can be tolerated.” United States v. Robel, 389 U.S. 258, 264 (1967). As Robel and many other cases5  show, all governmental power — even the war power, the power to maintain national security, or the power to conduct foreign affairs — is limited by the Bill of Rights. When individual freedoms of Americans are at stake, we do not blindly defer to broad claims of the Legislative Branch or Executive Branch, but rather we consider those claims in light of the individual freedoms. This should be our approach in the present case, even though the Government urges that the question of admitting aliens may involve foreign relations and national defense policies.

The majority recognizes that the right of American citizens to hear Mandel is “implicated” in our case. There were no rights of Americans involved in any of the old alien exclusion cases, and therefore their broad counsel about deference to the political branches is inapplicable. Surely a Court that can distinguish between pre-indictment and post-indictment lineups, Kirby v. Illinois, 406 U.S. 682 (1972), can distinguish between our case and cases which involve only the rights of aliens.

I do not mean to suggest that simply because some Americans wish to hear an alien speak, they can automatically compel even his temporary admission to our country. Government may prohibit aliens from even temporary admission if exclusion is necessary to protect a compelling governmental interest.6  Actual threats to the national security, public health needs, and genuine requirements of law enforcement are the most apparent interests that would surely be compelling.7  But in Dr. Mandel’s case, the Government has, and claims, no such compelling interest. Mandel’s visit was to be temporary.8  His “ineligibility” for a visa was based solely on § 212(a)(28). The only governmental interest embodied in that section is the Government’s desire to keep certain ideas out of circulation in this country. This is hardly a compelling governmental interest. Section (a)(28) may not be the basis for excluding an alien when Americans wish to hear him. Without any claim that Mandel “live” is an actual threat to this country, there is no difference between excluding Mandel because of his ideas and keeping his books out because of their ideas. Neither is permitted. Lamont v. Postmaster General, supra.

Writing for the majority, Justice Blackmun – yes, that Justice Blackmun – attempted to deflect the clear violation of the First Amendment rights of American citizens resulting from the denial of Mandel’s visa application.

Appellees’ First Amendment argument would prove too much. In almost every instance of an alien excludable under § 212(a)(28), there are probably those who would wish to meet and speak with him. The ideas of most such aliens might not be so influential as those of Mandel, nor his American audience so numerous, nor the planned discussion forums so impressive. But the First Amendment does not protect only the articulate, the well known, and the popular. Were we to endorse the proposition that governmental power to withhold a waiver must yield whenever a bona fide claim is made that American citizens wish to meet and talk with an alien excludable under § 212(a)(28), one of two unsatisfactory results would necessarily ensue. Either every claim would prevail, in which case the plenary discretionary authority Congress granted the Executive becomes a nullity, or courts in each case would be required to weigh the strength of the audience’s interest against that of the Government in refusing a waiver to the particular alien applicant, according to some as yet undetermined standard. The dangers and the undesirability of making that determination on the basis of factors such as the size of the audience or the probity of the speaker’s ideas are obvious. Indeed, it is for precisely this reason that the waiver decision has, properly, been placed in the hands of the Executive.

This response might have been persuasive if there had in fact been a bona fide reason for denying Mandel’s visa application. However, the stated reason was clearly pretextual and a sham; the real reason for denying the application was Mandel’s political opinions, so the First Amendment argument raised by Appellees was entirely correct and unrebutted by Justice Blackmun’s majority opinion. Mandel v. Kleindienst was wrongly and dishonestly decided, and, like similar wrongly decided cases, e.g., Korematsu v. United States, deserves, as a matter of simple justice, no precedential weight.

Despite its having been demolished by Justice Marshall’s dissent, I am willing to stipulate for present purposes that the majority opinion in Mandel would be controlling if it were not distinguishable from the case decided by the 3-judge panel. But let us keep in mind two important takeaway points from Justice Marshall’s discussion: first, the disgraceful, racist lineage of the plenary powers doctrine as it relates to immigration, and second, and more importantly for assessing Judge Bybee’s dissent, the absence in Mandel v. Kleindienst of any distinction between the Constitutional rights or interests of citizens that are incidentally abridged by the refusal to admit non-resident aliens into the Unites States and the Constitutional due process rights of aliens legally residing in the United States, precisely the distinction that, Judge Bybee incorrectly asserts, is addressed by Mandel.

Judge Bybee begins by criticizing the 3-judge panel for distinguishing Mandel, in which the Attorney General’s refusal to grant a waiver allowing Mandel entry to the US after a consular official denied his visa application, from an Executive Order promulgating sweeping immigration policy. Judge Bybee offers the following rebuttal:

First, the panel’s declaration that we cannot look behind the decision of a consular officer, but can examine the decision of the President stands the separation of powers on its head. We give deference to a consular officer making an individual determination, but not the President when making a broad, national security-based decision? With a moment’s thought, that principle cannot withstand the gentlest inquiry, and we have said so. See Bustamante v. Mukasey , 531 F.3d 1059, 1062 n.1 (9th Cir. 2008) (“We are unable to distinguish Mandel on the grounds that the exclusionary decision challenged in that case was not a consular visa denial, but rather the Attorney General’s refusal to waive Mandel’s inadmissibility. The holding is plainly stated in terms of the power delegated by Congress to the Executive.’ The Supreme Court said nothing to suggest that the reasoning or outcome would vary according to which executive officer is exercising the Congressionally-delegated power to exclude.”) (pp. 12-13)

Judge Bybee’s sarcasm is as misplaced as it is inappropriate. Mandel is a case about the exercise of a Congressionally authorized power to make a factual determination, normally delegated to a consular official, but in this case the determination at issue was made by the Attorney General reviewing the consular decision. In Bustamente the decision was made at the consular level. Big deal! The Mandel court ruled that such consular decisions to deny visas or higher- level decisions to deny waivers to lower-level decisions were not reviewable on the merits, even if the denials incidentally infringed upon the Constitutional rights of American citizens, provided that “a facially legitimate and bona fide reason” for the decision was provided. The deference accorded by Mandel to the factual decision of a consular official – or his superior — to deny the visa application of a non-resident alien, albeit one that incidentally affected the rights of an American citizen, is in no way comparable to a Presidential decision denying or abridging the Constitutional due-process rights of legally resident aliens, green-card holders and non-immigrant aliens holding valid visas.

Second, the promulgation of broad policy is precisely what we expect the political branches to do; Presidents rarely, if ever, trouble themselves with decisions to admit or exclude individual visa -seekers. See Knauff, 338 U.S. at 543 (“[B]ecause the power of exclusion of aliens is also inherent in the executive department of the sovereign, Congress may in broad terms authorize the executive to exercise the power . . . for the best interests of the country during a time of national emergency.”). If the panel is correct, it just wiped out any principle of deference to the executive. (p. 13)

Is there no deference to the executive unless we allow the Constitutional rights of American citizens and legally resident aliens to be trampled upon by the executive? Since when does “deference” mean “abject submission?” The implications of Judge Bybee’s argument lead straight to Korematsu v. United States. If Judge Bybee is correct, what Constitutional rights may not be abridged by the executive in the process of excluding aliens? Deference to the executive need not entail acquiescence in the denial of due process rights on an industrial scale.

Judge Bybee then invokes Fiallo v. Bell to support his position that broad policy decisions – in this case by Congress, which accorded preferential treatment to the natural mothers of illegitimate children over the natural fathers – are immune from scrutiny despite having discriminatory effects (pp. 13-14). In Fiallo, the Supreme Court upheld a provision of the 1952 Immigration and Nationality Act giving preference for immigration into the US to the legitimate parents of American citizens and to the illegitimate mothers (but not illegitimate fathers) of American citizens as well as to the legitimate children of American parents and to the illegitimate children of American mothers (but not American fathers). A group of illegitimate fathers of American children and illegitimate offspring of American fathers challenged this provision for discriminating on the basis of sex and legitimacy. The Fiallo Court relied on the Mandel “facially legitimate and bona fide reason” test to rule against the plaintiffs.

The panel’s holding that “exercises of policy making authority at the highest levels of the political branches are plainly not subject to the Mandel standard,” id., is simply irreconcilable with the Supreme Court’s holding that it could “see no reason to review the broad congressional policy choice at issue [there] under a more exacting standard than was applied in Kleindienst v. Mandel,” Fiallo, 430 U.S. at 795.

Having thoughtlessly embarked on the wrong road, Judge Bybee keeps marching relentlessly forward. Fiallo, like Mandel, is a case brought by American citizens claiming that their Constitutional rights not to be discriminated against had been incidentally abridged by a Congressional policy decision concerning which aliens, not otherwise eligible for entry into the US, shall be granted special waivers. While the case is related to Mandel, it was not entailed by Mandel, because deference to a consular decision about a question of fact need not entail deference to Congress about a matter of policy. Indeed, both the majority and the minority in Fiallo suggested reasons why the Congressional policy might have been judged to serve a legitimate public purpose. But again the key point is simply that the holding of the Fiallo court did not address the issue addressed by Washington, which is whether the President, by Executive Order, may deny the Constitutional rights of resident aliens, green card holders, and aliens holding valid visas.

Judge Bybee’s wrongheaded attack on the decision of the 3-judge panel reaches a crescendo of confusion in his discussion of Kerry v. Din (pp. 14-16), once again citing a case involving the Constitutional claim of an American citizen as a basis for challenging the denial of a visa to a non-resident alien. In Din, a US citizen whose Afghani husband had been denied an entry visa, claimed that her Constitutional right to live with her husband had been violated without due process. After the Ninth Circuit Court of Appeals upheld her claim, the Supreme Court reversed that decision on appeal. Not only does Judge Bybee misunderstand the relevance of Din to the issues addressed by the 3-judge panel, he fails to recognize that the holding of the Din court has essentially no precedential weight, because the majority that upheld the decision not to grant Din’s husband a visa did not agree on the grounds for rejecting Din’s claim, three justices rejecting Din’s claim that she had a Constitutional right to live with her husband, and two justices arguing that even if she had such a Constitutional right, the consular decision to her husband’s visa request satisfied the Mandel “facially legitimate and bona fide reason” test.

Believing that, because Justice Kennedy’s opinion invoking the Mandel test was controlling, that opinion has precedential authority for other cases, Judge Bybee admonishes the 3-judge panel for ignoring Din. Judge Bybee is wrong on both counts; Din is irrelevant to the opinion of the 3-judge panel, and, even if it were relevant, the 3-judge panel would not have had to reckon with it, because the majority could not agree on the basis of the decision. And I can’t help but observe that, on its face, Justice Kennedy’s opinion that the decision of the consular official that Din’s husband was a terrorist threat merely because he had held a civil-service position under the Taliban government did not obviously satisfy even the weak Mandel test, as Justice Breyer cogently observed in his dissenting opinion.

When Judge Bybee finally does get to a discussion of relevant precedents 16 pages into his 25 page opinion, the best he is able to come up with is Rajah v. Mukasey. After the September 11 attacks, non-immigrant resident males over the age of 16 from 24 Muslim-majority countries plus North Korea were required to appear for registration and fingerprinting. The Second Circuit Court of Appeals upheld this requirement in view of potential risks of further terrorist attacks. Although these requirements were burdensome and discriminatory, those requirements were hardly comparable to exclusion from the United States, so the willingness of the Rajah court to approve such provisions in the wake of the worst terrorist attack in US history does not come close to proving what Judge Bybee wants it to prove: that the law allows the President to revoke the Constitutional rights of resident aliens and prevent them from re-entering the country without even granting them a hearing. In other words, under Judge Bybee’s understanding, resident aliens denied re-entry into the country by Executive Order 13769 would be denied even the minimal “additional rights and privileges not extended to those on the threshold of entry” that, according to the Court in Leng May Ma v. Barber cited above, have been recognized by the Court.

The logical confusion of Judge Bybee’s conflation of two completely different classes of cases is actually quite impressive.

Judge Bybee (p. 20) also invokes 8 U.S.C. 1182f as a legal basis for the executive order at issue. However, the statutory authority of the US Code does not automatically override the Constitutional right to a hearing of a legal resident alien denied re-entry into the United States. Nor is it obvious that the statute in question referring to “the entry of any aliens or of any class of aliens into the United States,” includes resident aliens seeking re-entry into the United States. That is a question of statutory interpretation and the courts are entitled to have the final say on matters of statutory interpretation.

Judge Bybee (p. 20-21) considers that the reasons offered by the President in issuing the executive order were facially legitimate and bona fide reasons, but he acknowledges that in Din, Justice Kennedy indicated that evidence of bad faith on the part of a consular officer who denied a visa might be grounds for questioning whether the reasons offered by consular officer were “facially legitimate and bona fide.” After again chiding the 3-judge panel for not discussing Din, Judge Bybee (p. 21-22) then makes the interesting remark that “it would be a huge leap to suggest that Din’s ‘bad faith’ exception also applies to the motives of broad-policy makers as opposed to those of consular officials.” Because the grounds for suspecting that the executive order was issued in bad faith are so varied and abundant, it is astonishing that Judge Bybee would consider it a leap to conclude that a bad-faith exception might apply to a policy maker, especially after Judge Bybee was so insistent earlier in his opinion that the Mandel “facially legitimate and bona fide reason” test originally applied to the consular nonreviewability doctrine applied seamlessly to both consular decisions and to broad policy decisions.

There are other defects of Judge Bybee’s decision that I could have touched on, but this post is already much too long, and I have devoted too much of my time to tracking them down and explaining them. But I hope others will continue.

Samuelson Rules the Seas

I think Nick Rowe is a great economist; I really do. And on top of that, he recently has shown himself to be a very brave economist, fearlessly claiming to have shown that Paul Samuelson’s classic 1980 takedown (“A Corrected Version of Hume’s Equilibrating Mechanisms for International Trade“) of David Hume’s classic 1752 articulation of the price-specie-flow mechanism (PSFM) (“Of the Balance of Trade“) was all wrong. Although I am a great admirer of Paul Samuelson, I am far from believing that he was error-free. But I would be very cautious about attributing an error in pure economic theory to Samuelson. So if you were placing bets, Nick would certainly be the longshot in this match-up.

Of course, I should admit that I am not an entirely disinterested observer of this engagement, because in the early 1970s, long before I discovered the Samuelson article that Nick is challenging, Earl Thompson had convinced me that Hume’s account of PSFM was all wrong, the international arbitrage of tradable-goods prices implying that gold movements between countries couldn’t cause the relative price levels of those countries in terms of gold to deviate from a common level, beyond the limits imposed by the operation of international commodity arbitrage. And Thompson’s reasoning was largely restated in the ensuing decade by Jacob Frenkel and Harry Johnson (“The Monetary Approach to the Balance of Payments: Essential Concepts and Historical Origins”) and by Donald McCloskey and Richard Zecher (“How the Gold Standard Really Worked”) both in the 1976 volume on The Monetary Approach to the Balance of Payments edited by Johnson and Frenkel, and by David Laidler in his essay “Adam Smith as a Monetary Economist,” explaining why in The Wealth of Nations Smith ignored his best friend Hume’s classic essay on PSFM. So the main point of Samuelson’s takedown of Hume and the PSFM was not even original. What was original about Samuelson’s classic article was his dismissal of the rationalization that PSFM applies when there are both non-tradable and tradable goods, so that national price levels can deviate from the common international price level in terms of tradables, showing that the inclusion of tradables into the analysis serves only to slow down the adjustment process after a gold-supply shock.

So let’s follow Nick in his daring quest to disprove Samuelson, and see where that leads us.

Assume that durable sailing ships are costly to build, but have low (or zero for simplicity) operating costs. Assume apples are the only tradeable good, and one ship can transport one apple per year across the English Channel between Britain and France (the only countries in the world). Let P be the price of apples in Britain, P* be the price of apples in France, and R be the annual rental of a ship, (all prices measured in gold), then R=ABS(P*-P).

I am sorry to report that Nick has not gotten off to a good start here. There cannot be only tradable good. It takes two tango and two to trade. If apples are being traded, they must be traded for something, and that something is something other than apples. And, just to avoid misunderstanding, let me say that that something is also something other than gold. Otherwise, there couldn’t possibly be a difference between the Thompson-Frenkel-Johnson-McCloskey-Zecher-Laidler-Samuelson critique of PSFM and the PSFM. We need at least three goods – two real goods plus gold – providing a relative price between the two real goods and two absolute prices quoted in terms of gold (the numeraire). So if there are at least two absolute prices, then Nick’s equation for the annual rental of a ship R must be rewritten as follows R=ABS[P(A)*-P(A)+P(SE)*-P(SE)], where P(A) is the price of apples in Britain, P(A)* is the price of apples in France, P(SE) is the price of something else in Britain, and P(SE)* is the price of that same something else in France.

OK, now back to Nick:

In this model, the Law of One Price (P=P*) will only hold if the volume of exports of apples (in either direction) is unconstrained by the existing stock of ships, so rentals on ships are driven to zero. But then no ships would be built to export apples if ship rentals were expected to be always zero, which is a contradiction of the Law of One Price because arbitrage is impossible without ships. But an existing stock of ships represents a sunk cost (sorry) and they keep on sailing even as rentals approach zero. They sail around Samuelson’s Iceberg model (sorry) of transport costs.

This is a peculiar result in two respects. First, it suggests, perhaps inadvertently, that the law of price requires equality between the prices of goods in every location when in fact it only requires that prices in different locations not differ by more than the cost of transportation. The second, more serious, peculiarity is that with only one good being traded the price difference in that single good between the two locations has to be sufficient to cover the cost of building the ship. That suggests that there has to be a very large price difference in that single good to justify building the ship, but in fact there are at least two goods being shipped, so it is the sum of the price differences of the two goods that must be sufficient to cover the cost of building the ship. The more tradable goods there are, the smaller the price differences in any single good necessary to cover the cost of building the ship.

Again, back to Nick:

Start with zero exports, zero ships, and P=P*. Then suppose, like Hume, that some of the gold in Britain magically disappears. (And unlike Hume, just to keep it simple, suppose that gold magically reappears in France.)

Uh-oh. Just to keep it simple? I don’t think so. To me, keeping it simple would mean looking at one change in initial conditions at a time. The one relevant change – the one discussed by Hume – is a reduction in the stock of gold in Britain. But Nick is looking at two changes — a reduced stock of gold in Britain and an increased stock of gold in France — simultaneously. Why does it matter? Because the key point at issue is whether a national price level – i.e, Britain’s — can deviate from the international price level. In Nick’s two-country example, there should be one national price level and one international price level, which means that the only price level subject to change as a result of the change in initial conditions should be, as in Hume’s example, the British price level, while the French price level – representing the international price level – remained constant. In a two-country model, this can only be made plausible by assuming that France is large compared to Britain, so that a loss of gold could potentially affect the British price level without changing the French price level. Once again back to Nick.

The price of apples in Britain drops, the price of apples in France rises, and so the rent on a ship is now positive because you can use it to export apples from Britain to France. If that rent is big enough, and expected to stay big long enough, some ships will be built, and Britain will export apples to France in exchange for gold. Gold will flow from France to Britain, so the stock of gold will slowly rise in Britain and slowly fall in France, and the price of apples will likewise slowly rise in Britain and fall in France, so ship rentals will slowly fall, and the price of ships (the Present Value of those rents) will eventually fall below the cost of production, so no new ships will be built. But the ships already built will keep on sailing until rentals fall to zero or they rot (whichever comes first).

So notice what Nick has done. Instead of confronting the Thompson-Frenkel-Johnson-McCloseky-Zecher-Laidler-Samuelson critique of Hume, which asserts that a world price level determines the national price level, Nick has simply begged the question by not assuming that the world price of gold, which determines the world price level, is constant. Instead, he posits a decreased value of gold in France, owing to an increased French stock of gold, and an increased value of gold in Britain, owing to a decreased British stock of gold, and then conflating the resulting adjustment in the value gold with the operation of commodity arbitrage. Why Nick thinks his discussion is relevant to the Thompson-Frenkel-Johnson-McCloseky-Zecher-Laidler-Samuelson critique escapes me.

The flow of exports and hence the flow of specie is limited by the stock of ships. And only a finite number of ships will be built. So we observe David Hume’s price-specie flow mechanism playing out in real time.

This bugs me. Because it’s all sorta obvious really.

Yes, it bugs me, too. And, yes, it is obvious. But why is it relevant to the question under discussion, which is whether there is an international price level in terms of gold that constrains movements in national price levels in countries in which gold is the numeraire. In other words, if there is a shock to the gold stock of a small open economy, how much will the price level in that small open economy change? By the percentage change in the stock of gold in that country – as Hume maintained – or by the minisicule percentage change in the international stock of gold, gold prices in the country that has lost gold being constrained from changing by more than allowed by the cost of arbitrage operations? Nick’s little example is simply orthogonal to the question under discussion.

I skip Nick’s little exegetical discussion of Hume’s essay and proceed to what I think is the final substantive point that Nick makes.

Prices don’t just arbitrage themselves. Even if we take the limit of my model, as the cost of building ships approaches zero, we need to explain what process ensures the Law of One Price holds in equilibrium. Suppose it didn’t…then people would buy low and sell high…..you know the rest.

There are different equilibrium conditions being confused here. The equilibrium arbitrage conditions are not same as the equilibrium conditions for international monetary equilibrium. Arbitrage conditions for individual commodities can hold even if the international distribution of gold is not in equilibrium. So I really don’t know what conclusion Nick is alluding to here.

But let me end on what I hope is a conciliatory and constructive note. As always, Nick is making an insightful argument, even if it is misplaced in the context of Hume and PSFM. And the upshot of Nick’s argument is that transportation costs are a function of the dispersion of prices, because, as the incentive to ship products to capture arbitrage profits increases, the cost of shipping will increase as arbitragers bid up the value of resources specialized to the processes of transporting stuff. So the assumption that the cost of transportation can be treated as a parameter is not really valid, which means that the constraints imposed on national price level movements are not really parametric, they are endongenously determined within an appropriately specified general equilibrium model. If Nick is willing to settle for that proposition, I don’t think that our positions are that far apart.

Cyclical versus Secular Causes of Stagnation

Nick Rowe and Scott Sumner have recently had an interesting little debate about whether the slowdown in real GDP growth and labor productivity since the 2007-09 downturn is the result of cyclical or secular factors. Nick argues that successful inflation targeting in the two decades before the 2007 downturn had given rise to entrepreneurial expectations of stable aggregate demand, thereby providing a supportive macroeconomic environment for long-term investment that generates rising labor productivity over time. By undermining confidence in macroeconomic stability, the 2007-09 downturn diminished the willingness of businesses to continue make long-term investments and thus compromised one of the institutional pillars supporting long-term investment and productivity growth. Despite a recovery, expectations of future aggregate demand are now held with less confidence – higher perceived variance – than previously, thereby reducing entrepreneurial willingness to commit to the long-term capital expansion that increases productivity.

Scott is skeptical of the argument, because productivity growth had already started to decline after the 2001 downturn. Of course, one could argue that geopolitical uncertainty after the 9/11 attack and the invasions of Afghanistan and Iraq could have had a similar depressing effect on investment well before the 2007 downturn. So the decline in productivity growth that was underway at the time of the 2007 downturn is not necessarily inconsistent with Nick’s basic story. But Scott at least partially defends himself against that response by showing that real long-term investment as a share of GDP rose sharply after the 2001 downturn and was well above the levels of 1950s and 1960s.

Seeing no reason why the pace of productivity growth couldn’t have been affected by both cyclical and secular forces, I am happy to agree with both Nick and Scott. But I also have my own theory about the slowdown in productivity growth, which I have discussed previously, so this seems like a good time to weigh in again on the topic. As I pointed out in a 2015 post, one characteristic that distinguishes the 2007-09 downturn from earlier downturns is that it was associated with relatively large sectoral shifts in demand. Thus, the 2007-09 downturn was characterized by a higher percentage of jobs lost in the downturn that were not subsequently restored than was the case in earlier downturns. In earlier downturns, the decline in aggregate demand caused workers to be laid off temporarily from their jobs when demand and output fell, but a large percentage of laid-off workers were later rehired by their former when demand and output recovered. And even many of those laid-off workers that weren’t rehired by their previous employers still eventually found jobs doing work very similar to what they had been doing before losing their old jobs.

The depth and the severity of recessions can be measured not just by the unemployment rate, but also by the long-term unemployment rate. What set the 2007-09 downturn and the recovery apart from earlier downturns — even the 1981-82 downturn, in which the unemployment rate rose to almost 11 percent, higher than the 10 percent rate at depth of the 2007-09 downturn – was a long-term unemployment rate substantially higher, followed by a slower rate of decline, than in any post-World-War II downturn. I quote from a recent article on long-term unemployment

In January 2017, there were 1.85 million long-term unemployed. The number first dropped below two million in May 2015. That means 24.2 percent of the unemployed have been looking for work for six months. That’s better than the record high of 46 percent in the second quarter of 2010.

Sadly, it’s barely better than the darkest days of the 1981 recession. At that point, 26 percent of the unemployed were out of work for more than six months. On the other hand, total unemployment was worse than it is today. There was a 10.8 percent overall unemployment rate. In other words, the Great Recession created a higher percent of long-term unemployment.(Source: “Potential Causes and Implications of the Rise in Long-Term Unemployment,” The Federal Reserve Bank of Richmond, September 2011.)

Here’s how I put it in 2015.

[T]he 2008-09 downturn was associated with major sectoral shifts that caused an unusually large reallocation of labor from industries like construction and finance to other industries so that an unusually large number of workers have had to find new jobs doing work different from what they were doing previously. In many recessions, laid-off workers are either re-employed at their old jobs or find new jobs doing basically the same work that they had been doing at their old jobs. When workers transfer from one job to another similar job, there is little reason to expect a decline in their productivity after they are re-employed, but when workers are re-employed doing something very different from what they did before, a significant drop in their productivity in their new jobs is likely.

In addition, the number of long-term unemployed (27 weeks or more) since the 2000-09 downturn has been unusually high. Workers who remain unemployed for an extended period of time tend to suffer an erosion of skills, causing their productivity to drop when they are re-employed even if they are able to find a new job in their old occupation. It seems likely that the percentage of long-term unemployed workers that switch occupations is larger than the percentage of short-term unemployed workers that switch occupations, so the unusually high rate of long-term unemployment has probably had a doubly negative effect on labor productivity.

Long-term unemployment has adverse effects on health and many other metrics of well-being, effects that aren’t confined to the unemployed, but extend to their families, friends and communities. An increase in long-term unemployment, even if originally caused by an aggregate demand shock, is associated with a long-term negative supply shock. So it’s not surprising that the unusually and persistently high rate of long-term unemployment after the 2007-09 downturn, causing a massive loss of human capital, has depressed the subsequent growth in labor productivity. In my 2015 post, I tried to provide an optimistic interpretation of this phenomenon, but my optimism was misplaced, because the damage inflicted by long-term unemployment is very often irreversible, and rates of long-term unemployment have remained stubbornly high notwithstanding the steady decline in the overall unemployment rate.

Accounting for a disproportionate share of the long-term unemployed, discouraged older workers, chronically unable to find new jobs, have prematurely departed from the labor force. These older workers have presumably been replaced by younger entrants into the labor force, and one would suppose that the productivity of the younger workers is, on average, substantially lower than the productivity of the older and more experienced workers whom they have replaced, though presumably as they gain experience and acquire skills, the productivity of new workers will rise over time. Thus the demographic shift in the labor force is another reason for the low productivity growth since the 2007-09 downturn. But that effect, though largely demographic, has also had a cyclical component, making it difficult to disentangle the cyclical from the secular causes of sluggish productivity growth.

That difficulty is further compounded by another contributory cause of slow productivity growth. In my 2016 post, I discussed the late Walter Oi’s idea that labor is not really a variable factor of production as it is typically treated in simplified models, but a quasi-fixed factor. Here’s how Oi explained the idea:

For analytic purposes fixed employment costs can be separated into two categories called, for convenience, hiring and training costs. Hiring costs are defined as those costs that have no effect on a worker’s productivity and include outlays for recruiting, for processing payroll records, and for supplements such as unemployment compensation. These costs are closely related to the number of new workers and only indirectly related to the flow of labor’s services Training expenses, on the other hand, are investments in the human agent, specifically designed to improve a worker’s productivity.

The training activity typically entails direct money outlays as well as numerous implicit costs such as the allocation of old workers to teaching skills and rejection of unqualified workers during the training period.

So, if the 2007-09 downturn and the recovery was associated with an unusually high flow of workers from old jobs into new jobs, there has been an unusually high level of training expenses incurred by firms as they have brought workers into new jobs. The large investments by firms in training new workers have inevitably caused measured labor productivity to lag below previous trends when the fraction of workers entering the labor force or requiring new training to learn new skills was likely less than it has been since 2009. This idea, at any rate, does provide some reason to hope for at least a modest improvement in productivity and economic growth over time, even if the human cost of almost a decade of extremely high long-term unemployment is now largely irremediable and irretrievable.

Richard Lipsey and the Phillips Curve Redux

Almost three and a half years ago, I published a post about Richard Lipsey’s paper “The Phillips Curve and the Tyranny of an Assumed Unique Macro Equilibrium.” The paper originally presented at the 2013 meeting of the History of Econmics Society has just been published in the Journal of the History of Economic Thought, with a slightly revised title “The Phillips Curve and an Assumed Unique Macroeconomic Equilibrium in Historical Context.” The abstract of the revised published version of the paper is different from the earlier abstract included in my 2013 post. Here is the new abstract.

An early post-WWII debate concerned the most desirable demand and inflationary pressures at which to run the economy. Context was provided by Keynesian theory devoid of a full employment equilibrium and containing its mainly forgotten, but still relevant, microeconomic underpinnings. A major input came with the estimates provided by the original Phillips curve. The debate seemed to be rendered obsolete by the curve’s expectations-augmented version with its natural rate of unemployment, and associated unique equilibrium GDP, as the only values consistent with stable inflation. The current behavior of economies with the successful inflation targeting is inconsistent with this natural-rate view, but is consistent with evolutionary theory in which economies have a wide range of GDP-compatible stable inflation. Now the early post-WWII debates are seen not to be as misguided as they appeared to be when economists came to accept the assumptions implicit in the expectations-augmented Phillips curve.

Publication of Lipsey’s article nicely coincides with Roger Farmer’s new book Prosperity for All which I discussed in my previous post. A key point that Roger makes is that the assumption of a unique equilibrium which underlies modern macroeconomics and the vertical long-run Phillips Curve is neither theoretically compelling nor consistent with the empirical evidence. Lipsey’s article powerfully reinforces those arguments. Access to Lipsey’s article is gated on the JHET website, so in addition to the abstract, I will quote the introduction and a couple of paragraphs from the conclusion.

One important early post-WWII debate, which took place particularly in the UK, concerned the demand and inflationary pressures at which it was best to run the economy. The context for this debate was provided by early Keynesian theory with its absence of a unique full-employment equilibrium and its mainly forgotten, but still relevant, microeconomic underpinnings. The original Phillips Curve was highly relevant to this debate. All this changed, however, with the introduction of the expectations-augmented version of the curve with its natural rate of unemployment, and associated unique equilibrium GDP, as the only values consistent with a stable inflation rate. This new view of the economy found easy acceptance partly because most economists seem to feel deeply in their guts — and their training predisposes them to do so — that the economy must have a unique equilibrium to which market forces inevitably propel it, even if the approach is sometimes, as some believe, painfully slow.

The current behavior of economies with successful inflation targeting is inconsistent with the existence of a unique non-accelerating-inflation rate of unemployment (NAIRU) but is consistent with evolutionary theory in which the economy is constantly evolving in the face of path-dependent, endogenously generated, technological change, and has a wide range of unemployment and GDP over which the inflation rate is stable. This view explains what otherwise seems mysterious in the recent experience of many economies and makes the early post-WWII debates not seem as silly as they appeared to be when economists came to accept the assumption of a perfectly inelastic, long-run Phillips curve located at the unique equilibrium level of unemployment. One thing that stands in the way of accepting this view, however, the tyranny of the generally accepted assumption of a unique, self-sustaining macroeconomic equilibrium.

This paper covers some of the key events in the theory concerning, and the experience of, the economy’s behavior with respect to inflation and unemployment over the post-WWII period. The stage is set by the pressure-of-demand debate in the 1950s and the place that the simple Phillips curve came to play in it. The action begins with the introduction of the expectations-augmented Phillips curve and the acceptance by most Keynesians of its implication of a unique, self-sustaining macro equilibrium. This view seemed not inconsistent with the facts of inflation and unemployment until the mid-1990s, when the successful adoption of inflation targeting made it inconsistent with the facts. An alternative view is proposed, on that is capable of explaining current macro behavior and reinstates the relevance of the early pressure-of-demand debate. (pp. 415-16).

In reviewing the evidence that stable inflation is consistent with a range of unemployment rates, Lipsey generalizes the concept of a unique NAIRU to a non-accelerating-inflation band of unemployment (NAIBU) within which multiple rates of unemployment are consistent with a basically stable expected rate of inflation. In an interesting footnote, Lipsey addresses a possible argument against the relevance of the empirical evidence for policy makers based on the Lucas critique.

Some might raise the Lucas critique here, arguing that one finds the NAIBU in the data because policymakers are credibly concerned only with inflation. As soon as policymakers made use of the NAIBU, the whole unemployment-inflation relation that has been seen since the mid-1990s might change or break. For example, unions, particularly in the European Union, where they are typically more powerful than in North America, might alter their behavior once they became aware that the central bank was actually targeting employment levels directly and appeared to have the power to do so. If so, the Bank would have to establish that its priorities were lexicographically ordered with control of inflation paramount so that any level-of-activity target would be quickly dropped whenever inflation threatened to go outside of the target bands. (pp. 426-27)

I would just mention in this context that in this 2013 post about the Lucas critique, I pointed out that in the paper in which Lucas articulated his critique, he assumed that the only possible source of disequilibrium was a mistake in expected inflation. If everything else is working well, causing inflation expectations to be incorrect will make things worse. But if there are other sources of disequilibrium, it is not clear that incorrect inflation expectations will make things worse; they could make things better. That is a point that Lipsey and Kelvin Lancaster taught the profession in a classic article “The General Theory of Second Best,” 20 years before Lucas published his critique of econometric policy evaluation.

I conclude by quoting Lipsey’s penultimate paragraph (the final paragraph being a quote from Lipsey’s paper on the Phillips Curve from the Blaug and Lloyd volume Famous Figures and Diagrams in Economics which I quoted in full in my 2013 post.

So we seem to have gone full circle from the early Keynesian view in which there was no unique level of GDP to which the economy was inevitably drawn, through a simple Phillips curve with its implied trade-0ff, to an expectations-augmented Phillips curve (or any of its more modern equivalents) with its associated unique level of GDP, and finally back to the early Keynesian view in which policymakers had an option as to the average pressure of aggregate demand at which economic activity could be sustained. However, the modern debated about whether to aim for [the high or low range of stable unemployment rates] is not a debate about inflation versus growth, as it was in the 1950s, but between those who would risk an occasional rise of inflation above the target band as the price of getting unemployment as low as possible and those who would risk letting unemployment fall below that indicated by the lower boundary of the NAIBU  as the price of never risking an acceleration of inflation above the target rate. (p. 427)

Roger Farmer’s Prosperity for All

I have just read a review copy of Roger Farmer’s new book Prosperity for All, which distills many of Roger’s very interesting ideas into a form which, though readable, is still challenging — at least, it was for me. There is a lot that I like and agree with in Roger’s book, and the fact that he is a UCLA economist, though he came to UCLA after my departure, is certainly a point in his favor. So I will begin by mentioning some of the things that I really liked about Roger’s book.

What I like most is that he recognizes that beliefs are fundamental, which is almost exactly what I meant when I wrote this post (“Expectations Are Fundamental”) five years ago. The point I wanted to make is that the idea that there is some fundamental existential reality that economic agents try — and, if they are rational, will — perceive is a gross and misleading oversimplification, because expectations themselves are part of reality. In a world in which expectations are fundamental, the Keynesian beauty-contest theory of expectations and stock prices (described in chapter 12 of The General Theory) is not absurd as it is widely considered to be believers in the efficient market hypothesis. The almost universal unprofitability of simple trading rules or algorithms is not inconsistent with a market process in which the causality between prices and expectations goes in both directions, in which case anticipating expectations is no less rational than anticipating future cash flows.

One of the treats of reading this book is Farmer’s recollections of his time as a graduate student at Penn in the early 1980s when David Cass, Karl Shell, and Costas Azariadis were developing their theory of sunspot equilibrium in which expectations are self-fulfilling, an idea skillfully deployed by Roger to revise the basic New Keynesian model and re-orient it along a very different path from the standard New Keynesian one. I am sympathetic to that reorientation, and the main reason for that re-orientation is that Roger rejects the idea that there is a unique equilibrium to which the economy automatically reverts, albeit somewhat more slowly than if speeded along by the appropriate monetary policy, on its own. The notion that there is a unique equilibrium to which the economy automatically reverts is an assumption with no basis in theory or experience. The most that the natural-rate hypothesis can tell us is that if an economy is operating at its natural rate of unemployment, monetary expansion cannot permanently reduce the rate of unemployment below that natural rate. Eventually — once economic agents come to expect that the monetary expansion and the correspondingly higher rate of inflation will be maintained indefinitely — the unemployment rate must revert to the natural rate. But the natural-rate hypothesis does not tell us that monetary expansion cannot reduce unemployment when the actual unemployment rate exceeds the natural rate, although it is often misinterpreted as making that assertion.

In his book, Roger takes the anti-natural-rate argument a step further, asserting that the natural rate of unemployment rate is not unique. There is actually a range of unemployment rates at which the economy can permanently remain; which of those alternative natural rates the economy winds up at depends on the expectations held by the public about nominal future income. The higher expected future income, the greater consumption spending and, consequently, the greater employment. Things are a bit more complicated than I have just described them, because Roger also believes that consumption depends not on current income but on wealth. However, in the very simplified model with which Roger operates, wealth depends on expectations about future income. The more optimistic people are about their income-earning opportunities, the higher asset values; the higher asset values, the wealthier the public, and the greater consumption spending. The relationship between current income and expected future income is what Roger calls the belief function.

Thus, Roger juxtaposes a simple New Keynesian model against his own monetary model. The New Keynesian model consists of 1) an investment equals saving equilibrium condition (IS curve) describing the optimal consumption/savings decision of the representative individual as a locus of combinations of expected real interest rates and real income, based on the assumed rate of time preference of the representative individual, expected future income, and expected future inflation; 2) a Taylor rule describing how the monetary authority sets its nominal interest rate as a function of inflation and the output gap and its target (natural) nominal interest rate; 3) a short-run Phillips Curve that expresses actual inflation as a function of expected future inflation and the output gap. The three basic equations allow three endogenous variables, inflation, real income and the nominal rate of interest to be determined. The IS curve represents equilibrium combinations of real income and real interest rates; the Taylor rule determines a nominal interest rate; given the nominal rate determined by the Taylor rule, the IS curve can be redrawn to represent equilibrium combinations of real income and inflation. The intersection of the redrawn IS curve with the Phillips curve determines the inflation rate and real income.

Roger doesn’t like the New Keynesian model because he rejects the notion of a unique equilibrium with a unique natural rate of unemployment, a notion that I have argued is theoretically unfounded. Roger dismisses the natural-rate hypothesis on empirical grounds, the frequent observations of persistently high rates of unemployment being inconsistent with the idea that there are economic forces causing unemployment to revert back to the natural rate. Two responses to this empirical anomaly are possible: 1) the natural rate of unemployment is unstable, so that the observed persistence of high unemployment reflect increases in the underlying but unobservable natural rate of unemployment; 2) the adverse economic shocks that produce high unemployment are persistent, with unemployment returning to a natural level only after the adverse shocks have ceased. In the absence of independent empirical tests of the hypothesis that the natural rate of unemployment has changed, or of the hypothesis that adverse shocks causing unemployment to rise above the natural rate are persistent, neither of these responses is plausible, much less persuasive.

So Roger recasts the basic New Keynesian model in a very different form. While maintaining the Taylor Rule, he rewrites the IS curve so that it describes a relationship between the nominal interest rate and the expected growth of nominal income given the assumed rate of time preference, and in place of the Phillips Curve, he substitutes his belief function, which says that the expected growth of nominal income in the next period equals the current rate of growth. The IS curve and the Taylor Rule provide two steady state equations in three variables, nominal income growth, nominal interest rate and inflation, so that the rate of inflation is left undetermined. Once the belief function specifies the expected rate of growth of nominal income, the nominal interest rate consistent with expected nominal-income growth is determined. Since the belief function tells us only that the expected nominal-income growth equals the current rate of nominal-income growth, any change in nominal-income growth persists into the next period.

At any rate, Roger’s policy proposal is not to change the interest-rate rule followed by the monetary authority, but to propose a rule whereby the monetary authority influences the public’s expectations of nominal-income growth. The greater expected nominal-income growth, the greater wealth, and the greater consumption expenditures. The greater consumption expenditures, the greater income and employment. Expectations are self-fulfilling. Roger therefore advocates a policy by which the government buys and sells a stock-market index fund in order to keep overall wealth at a level that will generate enough consumption expenditures to support maximum sustainable employment.

This is a quick summary of some of the main substantive arguments that Roger makes in his book, and I hope that I have not misrepresented them too badly. As I have already said, I very much sympathize with his criticism of the New Keynesian model, and I agree with nearly all of his criticisms. I also agree wholeheartedly with his emphasis on the importance of expectations and on self-fulfilling character of expectations. Nevertheless, I have to admit that I have trouble taking Roger’s own monetary model and his policy proposal for stabilizing a broad index of equity prices over time seriously. And the reason I am so skeptical about Roger’s model and his policy recommendation is that his model, which does after all bear at least a family resemblance to the simple New Keynesian model, strikes me as being far too simplified to be credible as a representation of a real-world economy. His model, like the New Keynesian model, is an intertemporal model with neither money nor real capital, and the idea that there is an interest rate in such model is, though theoretically defensible, not very plausible. There may be a sequence of periods in such a model in which some form of intertemporal exchange takes place, but without explicitly introducing at least one good that is carried over from period to period, the extent of intertemporal trading is limited and devoid of the arbitrage constraints inherent in a system in which real assets are held from one period to the next.

So I am very skeptical about any macroeconomic model with no market for real assets so that the interest rate interacts with asset values and expected future prices in such a way that the existing stock of durable assets is willingly held over time. The simple New Keynesian model in which there is no money and no durable assets, but simply bonds whose existence is difficult to rationalize in the absence of money or durable assets, does not strike me as a sound foundation for making macroeconomic policy. An interest rate may exist in such a model, but such a model strikes me as woefully inadequate for macroeconomic policy analysis. And although Roger has certainly offered some interesting improvements on the simple New Keynesian model, I would not be willing to rely on Roger’s monetary model for the sweeping policy and institutional recommendations that he proposes, especially his proposal for stabilizing the long-run growth path of a broad index of stock prices.

This is an important point, so I will try to restate it within a wider context. Modern macroeconomics, of which Roger’s model is one of the more interesting examples, flatters itself by claiming to be grounded in the secure microfoundations of the Arrow-Debreu-McKenzie general equilibrium model. But the great achievement of the ADM model was to show the logical possibility of an equilibrium of the independently formulated, optimizing plans of an unlimited number of economic agents producing and trading an unlimited number of commodities over an unlimited number of time periods.

To prove the mutual consistency of such a decentralized decision-making process coordinated by a system of equilibrium prices was a remarkable intellectual achievement. Modern macroeconomics deceptively trades on the prestige of this achievement in claiming to be founded on the ADM general-equilibrium model; the claim is at best misleading, because modern macroeconomics collapses the multiplicity of goods, services, and assets into a single non-durable commodity, so that the only relevant plan the agents in the modern macromodel are called upon to make is a decision about how much to spend in the current period given a shared utility function and a shared production technology for the single output. In the process, all the hard work performed by the ADM general-equilibrium model in explaining how a system of competitive prices could achieve an equilibrium of the complex independent — but interdependent — intertemporal plans of a multitude of decision-makers is effectively discarded and disregarded.

This approach to macroeconomics is not microfounded, but its opposite. The approach relies on the assumption that all but a very small set of microeconomic issues are irrelevant to macroeconomics. Now it is legitimate for macroeconomics to disregard many microeconomic issues, but the assumption that there is continuous microeconomic coordination, apart from the handful of potential imperfections on which modern macroeconomics chooses to focus is not legitimate. In particular, to collapse the entire economy into a single output, implies that all the separate markets encompassed by an actual economy are in equilibrium and that the equilibrium is maintained over time. For that equilibrium to be maintained over time, agents must formulate correct expectations of all the individual relative prices that prevail in those markets over time. The ADM model sidestepped that expectational problem by assuming that a full set of current and forward markets exists in the initial period and that all the agents participating in the economy are present and endowed with wealth enabling them to trade in the initial period. Under those rather demanding assumptions, if an equilibrium price vector covering all current and future markets is arrived at, the optimizing agents will formulate a set of mutually consistent optimal plans conditional on that vector of equilibrium prices so that all the optimal plans can and will be carried out as time happily unfolds for as long as the agents continue in their blissful existence.

However, without a complete set of current and forward markets, achieving the full equilibrium of the ADM model requires that agents formulate consistent expectations of the future prices that will be realized only over the course of time not in the initial period. Roy Radner, who extended the ADM model to accommodate the case of incomplete markets, called such a sequential equilibrium, an equilibrium of plans, prices and expectations. The sequential equilibrium described by Radner has the property that expectations are rational, but the assumption of rational expectations for all future prices over a sequence of future time periods is so unbelievably outlandish as an approximation to reality — sort of like the assumption that it could be 76 degrees fahrenheit in Washington DC in February — that to build that assumption into a macroeconomic model is an absurdity of mind-boggling proportions. But that is precisely what modern macroeconomics, in both its Real Business Cycle and New Keynesian incarnations, has done.

If instead of the sequential equilibrium of plans, prices and expectations, one tries to model an economy in which the price expectations of agents can be inconsistent, while prices adjust within any period to clear markets – the method of temporary equilibrium first described by Hicks in Value and Capital – one can begin to develop a richer conception of how a macroeconomic system can be subject to the financial disturbances, and financial crises to which modern macroeconomies are occasionally, if not routinely, vulnerable. But that would require a reorientation, if not a repudiation, of the path on which macroeconomics has been resolutely marching for nigh on forty years. In his 1984 paper “Consistent Temporary Equilibrium,” published in a volume edited by J. P. Fitoussi, C. J. Bliss made a start on developing such a macroeconomic theory.

There are few economists better equipped than Roger Farmer to lead macroeconomics onto a new and more productive path. He has not done so in this book, but I am hoping that, in his next one, he will.

A Tutorial for Judy Shelton on the ABCs of Currency Manipulation

Currency manipulation has become a favorite bugbear of critics of both monetary policy and trade policy. Some claim that countries depress their exchange rates to give their exporters an unfair advantage in foreign markets and to insulate their domestic producers from foreign competition. Others claim that using monetary policy as a way to stimulate aggregate demand is necessarily a form of currency manipulation, because monetary expansion causes the currency whose supply is being expanded to depreciate against other currencies, making monetary expansion, ipso facto, a form of currency manipulation.

As I have already explained in a number of posts (e.g., here, here, and here) a theoretically respectable case can be made for the possibility that currency manipulation can be used as a form of covert protectionism without imposing either tariffs, quotas or obviously protectionist measures to favor the producers of one country against their foreign competitors. All of this was explained by the eminent international trade theorist Max Corden  over 30 years ago in a famous paper (“Exchange Rate Protection”). But to be able to make a credible case that currency manipulation is being practiced, it has to be shown that currency depreciation has been coupled with a restrictive monetary policy – either by reducing the supply of, or by increasing the demand for, base money. The charge that monetary expansion is ever a form of currency manipulation is therefore suspect on its face, and those who make accusations that countries are engaging in currency manipulation rarely bother to support the charge with evidence that currency deprection is being coupled with a restrictive monetary policy.

So it was no surprise to see in Tuesday’s Wall Street Journal that monetary-policy entrepreneur Dr. Judy Shelton has written another one of her screeds promoting the gold standard, in which, showing no awareness of the necessary conditions for currency manipulation, she assures us that a) currency manipulation is a real problem and b) that restoring the gold standard would solve it.

Certainly the rules regarding international exchange-rate arrangements are not working. Monetary integrity was the key to making Bretton Woods institutions work when they were created after World War II to prevent future breakdowns in world order due to trade. The international monetary system, devised in 1944, was based on fixed exchange rates linked to a gold-convertible dollar.

No such system exists today. And no real leader can aspire to champion both the logic and the morality of free trade without confronting the practice that undermines both: currency manipulation.

Ahem, pray tell, which rules relating to exchange-rate arrangements does Dr. Shelton believe are not working? She doesn’t cite any. And, what, on earth does “monetary integrity” even mean, and what does that high-minded, but totally amorphous, concept have to do with the rules of exchange-rate arrangements that aren’t working?

Dr. Shelton mentions “monetary integrity” in the context of the Bretton Woods system, a system based — well, sort of — on fixed exchange rates, forgetting – or choosing not — to acknowledge that, under the Bretton Woods system, exchange rates were also unilaterally adjustable by participating countries. Not only were they adjustable, but currency devaluations were implemented on numerous occasions as a strategy for export promotion, the most notorious example being Britain’s 30% devaluation of sterling in 1949, just five years after the Bretton Woods agreement had been signed. Indeed, many other countries, including West Germany, Italy, and Japan, also had chronically undervalued currencies under the Bretton Woods system, as did France after it rejoined the gold standard in 1926 at a devalued rate deliberately chosen to ensure that its export industries would enjoy a competitive advantage.

The key point to keep in mind is that for a country to gain a competitive advantage by lowering its exchange rate, it has to prevent the automatic tendency of international price arbitrage and corresponding flows of money to eliminate competitive advantages arising from movements in exchange rates. If a depreciated exchange rate gives rise to an export surplus, a corresponding inflow of foreign funds to finance the export surplus will eventually either drive the exchange rate back toward its old level, thereby reducing or eliminating the initial depreciation, or, if the lower rate is maintained, the cash inflow will accumulate in reserve holdings of the central bank. Unless the central bank is willing to accept a continuing accumulation of foreign-exchange reserves, the increased domestic demand and monetary expansion associated with the export surplus will lead to a corresponding rise in domestic prices, wages and incomes, thereby reducing or eliminating the competitive advantage created by the depressed exchange rate. Thus, unless the central bank is willing to accumulate foreign-exchange reserves without limit, or can create an increased demand by private banks and the public to hold additional cash, thereby creating a chronic excess demand for money that can be satisfied only by a continuing export surplus, a permanently reduced foreign-exchange rate creates only a transitory competitive advantage.

I don’t say that currency manipulation is not possible. It is not only possible, but we know that currency manipulation has been practiced. But currency manipulation can occur under a fixed-exchange rate regime as well as under flexible exchange-rate regimes, as demonstrated by the conduct of the Bank of France from 1926 to 1935 while it was operating under a gold standard. And the most egregious recent example of currency manipulation was undertaken by the Chinese central bank when it effectively pegged the yuan to the dollar at a fixed rate. Keeping its exchange rate fixed against the dollar was precisely the offense that the currency-manipulation police accused the Chinese of committing.

When governments manipulate exchange rates to affect currency markets, they undermine the honest efforts of countries that wish to compete fairly in the global marketplace. Supply and demand are distorted by artificial prices conveyed through contrived exchange rates. Businesses fail as legitimately earned profits become currency losses.

It is no wonder that appeals to free trade prompt cynicism among those who realize the game is rigged against them. Opposing the Trans-Pacific Partnership in June 2015, Rep. Debbie Dingell (D., Mich.) explained: “We can compete with anybody in the world. We build the best product. But we can’t compete with the Bank of Japan or the Japanese government.”

In other words, central banks provide useful cover for currency manipulation. Japan’s answer to the charge that it manipulates its currency for trade purposes is that movements in the exchange rate are driven by monetary policy aimed at domestic inflation and employment objectives. But there’s no denying that one of the primary “arrows” of Japan’s economic strategy under Prime Minister Shinzo Abe, starting in late 2012, was to use radical quantitative easing to boost the “competitiveness” of Japan’s exports. Over the next three years, the yen fell against the U.S. dollar by some 40%.

That sounds horrible, but Dr. Shelton conveniently forgets – or declines – to acknowledge that in September 2012, the yen had reached its post-war high against the dollar. Moreover, between September 2012 and September 2015, the trade weighted US dollar index in terms of major currencies rose by almost 25%, so most of the depreciation of the yen against the dollar reflected dollar appreciation rather than yen depreciation.

Now as I pointed out in a post in 2013 about Japan, there really were reasons to suspect that the Japanese were engaging in currency manipulation even though Japan’s rapid accumulation of foreign exchange reserves that began in 2009 came to a halt in 2012 before the Bank of Japan launched its quantitative easing program. I have not kept up on what policies the Bank of Japan has been following, so I am not going to venture an opinion about whether Japan is or is not a currency manipulator. But the evidence that Dr. Shelton is providing to support her charge is simply useless and irrelevant.

Last April, U.S. Treasury Secretary Jacob Lew cautioned Japan against using currency depreciation to gain a trade advantage and he placed the country on a the“monitoring list” of potential currency manipulators. But in response, Japanese Finance Minister Taro Aso threatened to raise the bar, saying he was “prepared to undertake intervention” in the foreign-exchange market.

Obviously, the US government responds to pressures from domestic interests harmed by Japanese competition. Whether such back and forth between the American Treasury Secretary and his Japanese counterpart signifies anything beyond routine grandstanding I am not in a position to say.

China has long been intervening directly in the foreign-exchange market to manipulate the value of its currency. The People’s Bank of China announces a daily midpoint for the acceptable exchange rate between the yuan and the dollar, and then does not allow its currency to move more than 2% from the target price. When the value of the yuan starts to edge higher than the desired exchange rate, China’s government buys dollars to push it back down. When the yuan starts to drift lower than the desired rate, it sells off dollar reserves to buy back its own currency.

China’s government has reserves that amount to nearly $3 trillion. According to Mr. Lew, the U.S. should mute its criticism because China has spent nearly $1 trillion to cushion the yuan’s fall over the last 2½ years or so. In a veiled reproach to Mr. Trump’s intention to label China a currency manipulator, Mr. Lew said it was “analytically dangerous” to equate China’s current intervention policies with its earlier efforts to devalue its currency for purposes of gaining a trade advantage. China, he noted, would only be open to criticism that is “intellectually sound.”

Whether China is propping up exchange rates or holding them down, manipulation is manipulation and should not be overlooked. To be intellectually consistent, one must acknowledge that the distortions induced by government intervention in the foreign-exchange market affect both trade and capital flows. A country that props up the value of its currency against the dollar may have strategic goals for investing in U.S. assets.

Far from being intellectually consistent, Dr. Shelton is rushing headlong into intellectual incoherence. She has latched on to the mantra of “currency manipulation,” and she will not let go. How does Dr. Shelton imagine that the fixed exchange rates of the Bretton Woods era, for which she so fervently pines, were maintained?

I have no idea what she might be thinking, but the answer is that they were maintained by intervention into currency markets to keep exchange rates from deviating by more than a minimal amount from their target rates. So precisely the behavior that, under the Bretton Woods system, she extols wholeheartedly, she condemns mindlessly when now undertaken by the Chinese.

Again, my point is not that the Chinese have not engaged in exchange-rate protection in the past. I have actually suggested in earlier posts to which I have hyperlinked above that the Chinese have engaged in that practice. But that no longer appears to be the case, and Dr. Shelton is clearly unable to provide any evidence that the Chinese are still engaging in that practice.

 [T]he . . . first step [to take] to address this issue [is] by questioning why there aren’t adequate rules in place to keep countries from manipulating their exchange rates.

The next step is to establish a universal set of rules based on monetary sovereignty and discipline that would allow nations to voluntarily participate in a trade agreement that did not permit them to undermine true competition by manipulating exchange rates.

I have actually just offered such a rule in case Dr. Shelton is interested. But I have little hope and no expectation that she is or will be.

The Incoherence and Bad Faith of Antonin Scalia’s Originalism — Updated

UPDATE: I just realized that yesterday I mistakenly published a rough draft of this post instead of the version that I had intended to publish. I apologize for that unforced error.

My previous post about judge-made law was inspired by a comment by Scott Sumner on the post before that about Judge Gorsuch. Well, another commenter, gofx, who commented on the post about judge-made law, has inspired this post. Let’s see how long we can keep this recursive equilibrium going. Here’s what gofx had to say:

David, I think your original post criticizing Gorsuch for a “monumental denial of reality” is confusing a normative statement and a positive statement. Textualists, like Scalia and others try to balance the effects common law, statutory, and executive (administrative) law. Yes, English common law is one of the bases of American law. But even the supreme court placed limits on federal judges creating common law with respect to certain areas of state law (Erie Railroad Co. v. Tompkins). So while common law remains important, judges are no longer the King’s agents attempting to standardize decisions and principles across the realm. Along came democracy, legislatures and executive-branch regulations. There is still plenty of scope for common law, but there is more and more “prescribed” laws and rules.

I agree that there is a problem here with confusing “normative” and “positive” statements about the law and the role of judges in making – or not making – law. But I don’t think that the confusion is mine. This is an important point, which will come up again below. But first, let me quote further from gofx’s comment:

Here is Scalia in “Common Law Courts in a Civil Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws:”

But though I have no quarrel with the common law and its process, I do question whether the attitude of the common-law judge – the mind-set that asks, “What is the most desirable resolution of this case, and how can any impediments to the achievement of that result be evaded?”– is appropriate for most of the work that I do, and much of the work that state judges do. We live in an age of legislation, and most new law is statutory law. As one legal historian has put it, in modern times “the main business of government, and therefore of law, [is] legislative and executive …. Even private law, so-called, [has been] turning statutory. The lion’s share of the norms and rules that actually govern[} the country [come) out of Congress and the legislatures. . . . The rules of the countless administrative agencies [are] themselves an important, even crucial, source of law.” This is particularly true in the federal courts, where, with a qualification so small it does not bear• mentioning, there is no such thing as common law.”

I am grateful for the reference to this essay based on two lectures given by Scalia in 2010, which I have now read for the first time. The first thing to note about the lecture is that despite his disclaimer about having “no quarrel with the common law and its process,” Scalia adopts an almost uniformly derogatory and disdainful attitude toward the common law and especially toward common-law judges; the disdain, bordering on contempt, is palpable. Here are some examples aside from the one gofx kindly provided:

As I have described, this system of making law by judicial opinion, and making law by distinguishing earlier cases, is what every American law student, what every newborn American lawyer, first sees when he opens his eyes. And the impression remains with him for life. His image of the great judge — the Holmes, the Cardozo — is the man (or woman) who has the intelligence to know what is the best rule of law to govern the case at hand, and then the skill to perform the broken-field running through earlier cases that leaves him free to impose that rule — distinguishing one prior case on his left, straight-arming another one on his right, high-stepping away from another precedent about to tackle him from the rear, until (bravo!) he reaches his goal: good law. That image of the great judge remains with the former law student when he himself becomes a judge, and thus the common-law tradition is passed on and on.

[T]he subject of statutory interpretation deserves study and attention in its own right, as the principal business of lawyers and judges. It will not do to treat the enterprise as simply an inconvenient modern add-on to the judges’ primary role of common-law lawmaking. Indeed, attacking the enterprise with the Mr. Fix-it mentality of the common-law judge is a sure recipe for incompetence and usurpation.

But the Great Divide with regard to constitutional interpretation is not that between Framers’ intent and objective meaning; but rather that between original meaning (whether derived from Framers’ intent or not) and current meaning. The ascendant school of constitutional interpretation affirms the existence of what is called the “living Constitution,” a body of law that (unlike normal statutes) grows and changes from age to age, in order to meet the needs of a changing society. And it is the judges who determine those needs and “find” that changing law. Seems familiar, doesn’t it? Yes, it is the common law returned, but infinitely more powerful than what the old common law ever pretended to be, for now it trumps even the statutes of democratic legislatures.

If you go into a constitutional law class, or study a constitutional-law casebook, or read a brief filed in a constitutional-law case, you will rarely find the discussion addressed to the text of the constitutional provision that is at issue, or to the question of what was the originally understood or even the originally intended meaning of that text. Judges simply ask themselves (as a good common-law judge would) what ought the result to be, and then proceed to the task of distinguishing (or, if necessary, overruling) any prior Supreme Court cases that stand in the way. Should there be (to take one of the less controversial examples) a constitutional right to die? If so, there is. Should there be a constitutional right to reclaim a biological child put out for adoption by the other parent? Again, if so, there is. If it is good, it is so. Never mind the text that we are supposedly construing; we will smuggle these in, if all else fails, under the Due Process Clause (which, as I have described, is textually incapable of containing them). Moreover, what the Constitution meant yesterday it does not necessarily mean today. As our opinions say in the context of our Eighth Amendment jurisprudence (the Cruel and Unusual Punishments Clause), its meaning changes to reflect “the evolving standards of decency that mark the progress of a maturing society.”

This is preeminently a common-law way of making law, and not the way of construing a democratically adopted text. . . . The Constitution, however, even though a democratically adopted text, we formally treat like the common law. What, it is fair to ask, is our justification for doing so?

The apparent reason for Scalia’s disdain for common-law judging is basically that judges, rather than deferring to the popular will expressed through legislation, presume to think that they can somehow figure out what the right, or best, decision is rather than mechanically follow the text of a statute enacted by a democratic legislature. Scalia hates judges who think for themselves, because, by thinking for themselves, they betray an insufferable elitisim instead of dutifully deferring to democratically elected legislators through whom the popular will is faithfully expressed. For Scalia it is the only the popular will that matters, the rights and interests of the litigants appearing before the judge being of little consequence compared to upholding the statutory text, the authoritative articulation of the popular will. Moreover, even if the statutes don’t achieve the right result, the people can at least read the statutes and regulations and know what the law says and how it will be enforced. And how can the people ever know what those high and mighty judges will decide to do next? And we all know — do we not? — the countless hours of their spare time spent in libraries and on-line by the unwashed masses poring over the latest additions to US Code and the Federal Register. Just think how all those long hours devoted to reading the US Code and the Federal Register would be wasted if those arrogant judges could simply ignore the plain meaning of the statutes and regulations and were allowed to use their own judgment in deciding cases.

I will forego, at least for now, indulging my desire to comment on Scalia’s critique of common-law judging. I want to focus instead on the positive case that Scalia makes for his textualist theory of statutory interpretation. To do so, let me quote liberally from Richard Posner’s withering 2012 review of Scalia’s treatise (co-authored by Bryan Garner), Reading the Law: The Interpretation of Legal Texts, which exposes the both the incoherence and the bad faith of Scalia’s textualist arguments. The entire review is worthy of careful study, but I will pick out a few paragraphs that highlight Scalia’s tortured relationship with and attitude toward the common law.

Judges like to say that all they do when they interpret a constitutional or statutory provision is apply, to the facts of the particular case, law that has been given to them. They do not make law: that is the job of legislators, and for the authors and ratifiers of constitutions. They are not Apollo; they are his oracle. They are passive interpreters. Their role is semantic.

The passive view of the judicial role is aggressively defended in a new book by Justice Antonin Scalia and the legal lexicographer Bryan Garner (Reading Law: The Interpretation of Legal Texts, 2012). They advocate what is best described as textual originalism, because they want judges to “look for meaning in the governing text, ascribe to that text the meaning that it has borne from its inception, and reject judicial speculation about both the drafters’ extra-textually derived purposes and the desirability of the fair reading’s anticipated consequences.” This austere interpretive method leads to a heavy emphasis on dictionary meanings, in disregard of a wise warning issued by Judge Frank Easterbrook, who though himself a self-declared textualist advises that “the choice among meanings [of words in statutes] must have a footing more solid than a dictionary—which is a museum of words, an historical catalog rather than a means to decode the work of legislatures.” Scalia and Garner reject (before they later accept) Easterbrook’s warning. Does an ordinance that says that “no person may bring a vehicle into the park” apply to an ambulance that enters the park to save a person’s life? For Scalia and Garner, the answer is yes. After all, an ambulance is a vehicle—any dictionary will tell you that. If the authors of the ordinance wanted to make an exception for ambulances, they should have said so. And perverse results are a small price to pay for the objectivity that textual originalism offers (new dictionaries for new texts, old dictionaries for old ones). But Scalia and Garner later retreat in the ambulance case, and their retreat is consistent with a pattern of equivocation exhibited throughout their book. . . .

Another interpretive principle that Scalia and Garner approve is the presumption against the implied repeal of state statutes by federal statutes. They base this “on an assumption of what Congress, in our federal system, would or should normally desire.” What Congress would desire? What Congress should desire? Is this textualism, too?

And remember the ambulance case? Having said that the conclusion that an ambulance was forbidden to enter the park even to save a person’s life was entailed by textual originalism and therefore correct, Scalia and Garner remark several hundred pages later that the entry of the ambulance is not prohibited after all, owing to the “common-law defense of necessity,” which they allow to override statutory text. Yet just four pages later they say that except in “select fields such as admiralty law, [federal courts] have no significant common-law powers.” And still elsewhere, tacking back again, they refer approvingly to an opinion by Justice Kennedy (Leegin Creative Leather Products, Inc. v. PSKS, Inc.), which states that “the Sherman Act’s use of ‘restraint of trade’ invokes the common law itself … not merely the static content that the common law had assigned to the term in 1890.” In other words, “restraint of trade” had a specific meaning (and it did: it meant “restraints on alienation”) in 1890 that judges are free to alter in conformity with modern economics—a form of “dynamic” interpretation that should be anathema to Scalia and Garner. A few pages later they say that “federal courts do not possess the lawmaking power of common-law courts,” ignoring not only the antitrust and ambulance cases but also the fact that most of the concepts deployed in federal criminal law—such as mens rea (intent), conspiracy, attempt, self-defense, and necessity—are common law concepts left undefined in criminal statutes.

Scalia and Garner indicate their agreement with a number of old cases that hold that an heir who murders his parents or others from whom he expects to inherit is not disqualified from inheriting despite the common law maxim that no person shall be permitted to profit from his wrongful act. (Notice how common law floats in and out of their analysis, unpredictably.) They say that these cases are “textually correct” though awful, and are happy to note that they have been overruled by statute. Yet just before registering their approval they had applauded the rule that allows the deadlines in statutes of limitations to be “tolled” (delayed) “because of unforeseen events that make compliance impossible.” The tolling rule is not statutory. It is a judicial graft on statutes that do not mention tolling. Scalia and Garner do not explain why that is permissible, but a judicial graft disqualifying a murdering heir is not.

Scalia and Garner defend the canon of construction that counsels judges to avoid interpreting a statute in a way that will render it unconstitutional, declaring that this canon is good “judicial policy.” Judicial policy is the antithesis of textual originalism. They note that “many established principles of interpretation are less plausibly based on a reasonable assessment of meaning than on grounds of policy adopted by the courts”—and they applaud those principles, too. They approve the principle that statutes dealing with the same subject should “if possible be interpreted harmoniously,” a principle they deem “based upon a realistic assessment of what the legislature ought to have meant,” which in turn derives from the “sound principles…that the body of the law should make sense, and…that it is the responsibility of the courts, within the permissible meanings of the text, to make it so” (emphasis added). In other words, judges should be realistic, should impose right reason on legislators, should in short clean up after the legislators.

I would just note in passing that Posner shows that the confusion between normative and positive which gofx in the comment above ascribed to me is obviously running rampant, if not amok, throughout Scalia’s treatise. But Posner’s evisceration of Scalia’s bad faith does not go far enough, because the bad faith extends beyond Scalia’s willingness to invoke (or smuggle in) common-law principles to cover up the gaps in his textualism. Scalia’s whole originalist doctrine that the text of the Constitution should be interpreted according to the original meaning of the text of the Constitution relies on the premise that the judicial interpretations of the Constitution had always been governed by the original meaning that had been universally attributed to the Constitutional text. It was only much later, say, in the middle of the twentieth century, on or about May 17, 1954, that the interpretation of the Constitution was perverted by the reprehensible judges and their academic handmaidens who invented the notion of a living constitution that adjusts to the “evolving standards of decency that mark the progress of a maturing society.” Let me quote once more from Posner’s review:

Scalia and Garner contend that textual originalism was the dominant American method of judicial interpretation until the middle of the twentieth century. The only evidence they provide, however, consists of quotations from judges and jurists, such as William Blackstone, John Marshall, and Oliver Wendell Holmes, who wrote before 1950. Yet none of those illuminati, while respectful of statutory and constitutional text, as any responsible lawyer would be, was a textual originalist. All were, famously, “loose constructionists.”

Scalia and Garner call Blackstone “a thoroughgoing originalist.” They say that “Blackstone made it very clear that original meaning governed.” Yet they quote in support the famous statement in his Commentaries on the Laws of England that “the fairest and most rational method to interpret the will of the legislator, is by exploring his intentions at the time when the law made, by signs the most natural and probable. And these signs are either the words, the context, the subject matter, the effects and consequence, or the spirit and reason of the law” (emphasis mine, except that the first “signs” is emphasized in the original). Blackstone adds that “the most universal and effectual way of discovering the true meaning of a law, when the words are dubious, is by considering the reason and spirit of it; or the cause which moved the legislator to enact it.”

Just so! But, once again, Posner goes too easy on Scalia, because Scalia’s whole premise in his essay on common law courts, to which gofx pointed me, is that the modern theories of Constitutional interpretation so abhorent to Scalia are basically extensions, albeit extreme extensions, of common-law judging in which the judge tries to find the best possible outcome for the case he that he is deciding, unconstrained by any statutory or Constitutional text. It is the lack of subordination by common-law judges to any authoritative legal text with a fixed meaning that they are bound to accept that is the ultimate heresy of which all common-law judges, in Scalia’s eyes, stand convicted. But when the US Constitution was ratified all the judges in America and Britain were common-law judges. And Blackstone’s magisterial Commentaries on the Laws of England was a four-volume paean to the common law of England. So, under Scalia’s own originalist doctrine, the meaning of the judiciary in the US Constitution, written by the Framers under Blackstone’s thrall, was the kind of judging practiced by common-law judges. The judges who interpreted the Constitution for almost two centuries after the Constitution was ratified were common-law judges and they were interpreting the Constitution using the very interpretative methods of common-law judges that Scalia so violently condemns.

Scalia has literally hoisted himself by his own originalist petard. Couldn’t have happened to a finer fellow.

Yes, Judges Do Make Law

Scott Sumner has just written an interesting comment to my previous post in which I criticized a remark made by Judge Gorsuch upon being nominated to fill the vacant seat on the Supreme Court — so interesting, in fact, that I think it is worth responding to him in a separate post.

First, here is the remark made by Judge Gorsuch to which I took exception.

I respect, too, the fact that in our legal order, it is for Congress and not the courts to write new laws. It is the role of judges to apply, not alter, the work of the people’s representatives. A judge who likes every outcome he reaches is very likely a bad judge . . . stretching for results he prefers rather than those the law demands.

I criticized Judge Gorsuch for denying what to me is the obvious fact that judges do make law. They make law, because the incremental effect of each individual decision results in a legal order that is different from the legislation that has been enacted by legislatures. Each decision creates a precedent that must be considered by other judges as they apply and construe the sum total of legislatively enacted statutes in light of, and informed by, the precedents of judges and the legal principles that have guided judges those precedents. Law-making by judges under a common law system — even a common law system in which judges are bound to acknowledge the authority of statutory law — is inevitable for many reasons, one but not the only reason being that statutes will sooner or later have to be applied in circumstances were not foreseen by that legislators who enacted those statutes.

To take an example of Constitutional law off the top of my head: is it an unreasonable search for the police to search the cell phone of someone they have arrested without first getting a search warrant? That’s what the Supreme Court had to decide two years ago in Riley v. California. The answer to that question could not be determined by reading the text of the Fourth Amendment which talks about the people being secure in their “persons, houses, papers, or effects” or doing a historical analysis of what the original understanding of the terms “search” and “seizure” and “papers and effects” was when the Fourth Amendment to the Constitution was enacted. Earlier courts had to decide whether government eavesdropping on phone calls violated the Fourth Amendment. And other courts have had to decide whether collecting meta data about phone calls is a violation. Answers to those legal questions can’t be found by reading the relevant legal text.

Here’s part of the New York Times story about the Supreme Court’s decision in Riley v. Califronia.

In a sweeping victory for privacy rights in the digital age, the Supreme Court on Wednesday unanimously ruled that the police need warrants to search the cellphones of people they arrest.

While the decision will offer protection to the 12 million people arrested every year, many for minor crimes, its impact will most likely be much broader. The ruling almost certainly also applies to searches of tablet and laptop computers, and its reasoning may apply to searches of homes and businesses and of information held by third parties like phone companies.

“This is a bold opinion,” said Orin S. Kerr, a law professor at George Washington University. “It is the first computer-search case, and it says we are in a new digital age. You can’t apply the old rules anymore.”

But he added that old principles required that their contents be protected from routine searches. One of the driving forces behind the American Revolution, Chief Justice Roberts wrote, was revulsion against “general warrants,” which “allowed British officers to rummage through homes in an unrestrained search for evidence of criminal activity.”

“The fact that technology now allows an individual to carry such information in his hand,” the chief justice also wrote, “does not make the information any less worthy of the protection for which the founders fought.”

Now for Scott’s comment:

I don’t see how Gorsuch’s view conflicts with your view. It seems like Gorsuch is saying something like “Judges should not legislate, they should interpret the laws.” And you are saying “the laws are complicated.” Both can be true!

Well, in a sense, maybe, because what judges do is technically not legislation. But they do make law; their opinions determine for the rest of us what we may legally do and what we may not legally do and what rights to expect will be respected  and what rights will not be respected. Judges can even change the plain meaning of a statute in order to uphold a more basic, if unwritten, principle of justice, which,under, the plain meaning of Judge Gorsuch’s remark (“It is the role of judges to apply, not alter, the work of the people’s representatives”) would have to be regarded as an abuse of judicial discretion. The absurdity of what I take to be Gorsuch’s position is beautifully illustrated by the case of Riggs v. Palmer which the late — and truly great — Ronald Dworkin discussed in his magnificent article “Is Law a System of Rules?” aka “The Model of Rules.” Here is the one paragraph in which Dworkin uses the Riggs case to show that judges apply not just specific legal rules (e.g., statutory rules), but also deeper principles that govern how those rules should be applied.

My immediate purpose, however, is to distinguish principles in the generic sense from rules, and I shall start by collecting some examples of the former. The examples I offer are chosen haphazardly; almost any case in a law school casebook would provide examples that would serve as well. In 1889, a New York court, in the famous case of Riggs v. Palmer, had to decide whether an heir named in the will of his grandfather could inherit under that will, even though he had murdered his grandfather to do so. The court began its reasoning with this admission: “It is quite true that statues regulating the making, proof and effect of wills, and the devolution of property, if literally construed [my emphasis], and if their force and effect can in no way and under no circumstances be controlled or modified, give this property to the murderer.” But the court continued to note that “all laws as well as all contracts may be controlled in their operation and effect by general, fundamental maxims of the common law. No one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found any claim upon his own iniquity, or to acquire property by his own crime.” The murderer did not receive his inheritance.

QED. In this case the Common law overruled the statute, and justice prevailed over injustice. Game, set, match to the judge!


About Me

David Glasner
Washington, DC

I am an economist in the Washington DC area. My research and writing has been mostly on monetary economics and policy and the history of economics. In my book Free Banking and Monetary Reform, I argued for a non-Monetarist non-Keynesian approach to monetary policy, based on a theory of a competitive supply of money. Over the years, I have become increasingly impressed by the similarities between my approach and that of R. G. Hawtrey and hope to bring Hawtrey's unduly neglected contributions to the attention of a wider audience.

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