Thoughts on a free market legal system?
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Posted on Dec 28, 2010 06:53 pm
Quincysan
http://www.unitedmusicians.info
Contributor Since: Nov 11, 2007
A few months ago I posted an idea for reforming tax law to incorporate a fund for innovative music efforts. This idea was partially out of a desire to find a niche for myself in the recorded music industry and partially out of a desire to improve the quality of musicianship representative of my generation. It didn't go over well, hah. I think some of us were afraid of socialist implications and even I agreed it was an unjust idea at the end of the day. We shouldn't tax citizens for subjective wants that aren't necessarily mutual wants. Today, I'm wondering how we all feel about something completely different. There's a Georgetown/Duke prof named John Hasnas who is a self proclaimed libertarian, and seems to support the market for resolving all things; Keynes be damned. If you were to ask me this morning "how would you feel about a private legal system?" I would point to inefficiencies I've seen in a union I've been exposed to and say, "poor choice". However, after reading an article written by John Hasnas and published by the Wisconsin Law Review in '95...I'm beginning to wonder if the market can create a more democratic judicial system.
Adding to my confusion is another article written by Hasnas that WSJ published in 2009 regarding the appointment of Sotomayor. The article implies that Sotomayor will be reaching judgments based on cultural and emotional bias, and that this will negatively affect equitable justice. According to the '95 article by the same author; this is completely by design and representative of a healthy evolution in equitable judgments in a legal system. According to the '95 article Hasnas wrote, the law itself doesn't necessarily change, but the way the law is interpreted does change; and this is good for shifting moral paradigms that 'should' be shifted. The civil rights movement is an obvious example. However, based on the more recent WSJ article, it seems to me that Hasnas has either changed his perspective on the indeterminate nature of law and consequently the utility of a free market legal system or he was writing an article for WSJ's audience.
What would a free market legal system look like? Could it work? How about as it relates to IP law?
Here are the articles that sparked my interest if you are interested in any of this:
1995- faculty.msb.edu/hasnasj/GTWebSite/MythWeb.htm
2009- online.wsj.com/article/SB124355502499664627.html
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Dec 28, 2010 06:59 pm Until I give it some thought, and have something more insightful to add, I will just start by requesting that you never put unions related to "free market" the two do no coexist, unions are the opposite of free market and are a part of the reason the US is now failing in the global marketplace.
beyond that, what do you mean by "free market legal system"? I mean, lawyers are private sector employees, or, at least personal lawyers are, DA's are federal employees. I would think, off hand, it wouldn't be possible, laws are a matter of gov't...
I do, however, think we should consider privatizing law enforcement, fire and rescue and possibly even military.
Quincysanhttp://www.unitedmusicians.infoContributor
Since: Nov 11, 2007
Dec 28, 2010 07:16 pm Hasnas suggests that we should remove government from the legal system completely. I interpreted this to mean the removal of federal judicial powers. No more supreme court, no more statutes from congress, no more federal prisons, etc. etc. etc.
The reason I mentioned Unions is the same reason you got frustrated when I mentioned them. Based on what limited experience I have with them, Unions aren't efficient. The point of a free market is to develop efficiency, I think. However, if we remove the power of the government in all things legal there would be competing factions of legality. I would think those competing factions to be something like the Union system we are familiar with. You pay to opt in and the legal entity represents your needs when resolving a dispute with the opponents legal entity.
That's what I took away.
Dec 28, 2010 07:58 pm As much of an advocate of small government and free marketas I am, I fail to see any advantage in going that route in the legal system. Law ans law enforcement is one of the very few places I think government belongs...I can't even imagine what kind of anarchy would come of this suggestion.
Quincysanhttp://www.unitedmusicians.infoContributor
Since: Nov 11, 2007
Dec 28, 2010 09:13 pm In an economy as established as ours; I'm almost sure that you're right. A free market legal/judicial system would cause an ugly mess if it were applied fully because our paradigms are responsible for our successes. You can't upset a successful tactic for an untried tactic when it conflicts with everything we've built our successes on. It just wouldn't work.
If the concept is sound but the application impractical, maybe there's something to be gained from knowing how our judicial system could have evolved if gov officials weren't defining precedents for the market, instead of letting the market define its own version of justice? In the short run the problem could be anarchy; in the long run I think a monopoly could be even more dangerous. I don't know that this is a solution; maybe it's just an alternative way to build an economy from the ground up. Maybe more efficient and equitable, maybe not.
Consider how a market driven legal system might help define a blank slate of a nation. Maybe it boils down to whether the market necessarily chooses businesses that supply demand most efficiently. If it does, then those businesses should have the resources to align themselves in a way that makes them persuasive to those who are altering the natural market forces to bring business away from companies who are fitting supply to demand.
I had never considered that an economy could exist without some kind of central government and reading this article got me thinking about where inefficiencies come from.
Perhaps this is something like the time I got excited when I discovered that Neil Yong uses a bathroom as a reverb chamber instead of a spring/plate reverb unit. Only exciting/worth noting to me because I hadn't thought of it before and because I was ignorant of history. Considering how hypothetical all this is...I guess there's not much further we could take this discussion.
Not the first time I've talked/thought in circles. Still glad I read the articles, not sure what good could come of it.
cooloFrisco's Most UnderratedMember
Since: Jan 28, 2003
Dec 28, 2010 09:58 pm Wow, first off, this guy is a horrible writer! Run on sentences like a mug (1995 article). With that being said, I refuse to read what he has to say, I don't have the desire to try and interpret writing that does not present ideas in a clear manner.
I am however interested in hearing more about this idea of a free market legal system. I'm trying to imagine what it means and I can't create a working picture of it knowing what I know of the legal system and the free market idea. If you would like to explain how it might work, I'd be very interested. Who are the suppliers of laws and who are the consumers of laws?
I'd also like to comment on db's union comment in regards to free markets. Unions came into existence in response to a situation that was not consistent with the free market. A free market is defined classically as a system with many suppliers and many consumers. But in the days when labor unions were born, there were many producers of labor (workers) and very few consumers of labor (companies offering jobs). This was not a free market situation and left the companies holding all the advantages in terms of working conditions and wages. Unions came into existence precisely because there was not a free market existing in the local economies at the time.
Some additional comments on the "free market":
Free market as an economic theory sounds great but has one major flaw. It is all based on the assumptions that people will act rationally (in the economic sense). Well, I can tell you from observing people and society, people are in general, extremely irrational!!!! Therefore, in my opinion, free market theory is flawed from the get go. On top of that, in America, we have a "wannabe" free market. And I'm not talking about government regulations that prohibit business flexibility. I'm talking about goverment regulations that actively support certain companies over others and certain business activities over others. It seems to me, the same people who cry "free market" about govt regulations are the same people who stick out their hands trying to get "free" government money. You can't have it both ways!
Quincysanhttp://www.unitedmusicians.infoContributor
Since: Nov 11, 2007
Dec 28, 2010 10:33 pm I'm not sure that I've met many people shouting "free market" who are also trying to get free money.
To be clear: I don't support the radical ideas I've been questioning. I'm asking questions because I believe that there are valuable insights to be gained from different perspectives. Even and especially unconventional ones. I don't think poor grammar is indicative of anything, really.
cooloFrisco's Most UnderratedMember
Since: Jan 28, 2003
Dec 29, 2010 12:48 am I still don't know how it works, so I can't try to think about whether it would be a good idea or not... I'm trying my best not to pre-judge.
As for people who shout "free market" and then look for money... try banks. They want less and less regulation, yet they were the first ones with their hands out looking for bailout money. If there was a true free market, they would have been allowed to fail.
As for grammar... I don't think it's indicative of the validity of the ideas, but I'm too lazy to try and wrap my head around the idea if you (not you, but the author) can't present it clearly. Sometimes I wonder if these academic types don't purposefully obfuscate their ideas so people have a harder time to argue against them. You can't contradict them if you can't understand them....
Dec 29, 2010 07:06 am " If there was a true free market, they would have been allowed to fail.
And we have a winner. That is exactly right...back in the old days if people stopped buying someone's product, they went out of business...and from the looks of how the "stimulus" ideas panned out, it looks like it may have been less painful to just let them fail.
That said, we don't have a free market, we are closer in some industries than others, but far overregulated. I do believe there should be less regulation and consumers should be far more responsible than they are, regulation is necessary to a basic degree, but more than that just gives consumers a reason to be ignant. Along with less regulation, the market should self regulate, meaning, the freedom to fail and disappear.
I don't have much faith in "academic types", a lot because they try to be experts in things they have never experienced...they go thru college, get their degree, then enter the school system and into a union, and never really experience the real world and the things they profess to know so much about...I have talked to college professors that have their head so far up their *** it's stunning.
I enjoy these discussions myself, it helps me further form my own opinions, cuz good ideas come from surprising places sometimes.
As far as shouting free market, then looking for money...yeah, kind of a cunnundrum...people wanting handouts rarely look to the free market, because free market requires work, people that work hard, have good ideas, take risks and such are the ones that generally succeed.
Dec 29, 2010 07:11 am Coolo, don't assume that my opinion of unions today is even close to my opinion of unions when they came about. They did some great things and were necessary...today, much of what they did is now labor law, and unions are less and less necessary and wield FAR too much power.
Regarding people acting rationally...well, then that falls on people...not the system. If you look at it, if people were predictable and reliable, every financial system and every government type would work...Socialism would work great if everyone contributed to the best of their abilities, but the human wants to slack and socialism allows that...Capitalism would work great if the very wealthy were more generous to their employees, but greed is rampid...the flaw in every system isn't the system, it's the loose cannon, people, and they should be responsible for themselves.
Sadly, our society does not promote self-responsibility any more, everything is always some one elses fault and they are the victim.
Quincysanhttp://www.unitedmusicians.infoContributor
Since: Nov 11, 2007
Dec 29, 2010 11:09 am I emailed Hasnas about this and he did confirm that the 2009 article was written for an audience of WSJ readers, and not an embodiment of his theory on the indeterminate nature of law.
That's key, because if you follow the logic in the '95 article the indeterminate nature of law is the basis for justifying a free market legal/judicial system. He also gave me a few other articles to read into on this subject. If I come up with anything interesting I'll summarize to the best of my ability and post it.
I agree that academics have some impractical ideas. Whether they are any good or not is up for debate; but they get me thinking from a different perspective and I like that.
Dec 29, 2010 11:13 am I am kind of stuck with Coolo in not really seeing how a fre market legal system would even look or work...I mean, does that mean each municipality has it's own court system, or multiple court systems...are there consistent laws or is it just the judicial system enforcing those laws that is free market...cuz I'd be all about privatizing law enforcement...I just don't see the court system though...that is the one place gubment belongs.
Though there are certainly inefficiencies...there are in any system that has no motive for profit.
Quincysanhttp://www.unitedmusicians.infoContributor
Since: Nov 11, 2007
Dec 29, 2010 06:06 pm I just wrapped up reading another, more prescriptive, publication on how a free market legal system might work.
faculty.msb.edu/hasnasj/GTWebSite/TIL.PDF
The type of free market legal system that dB, myself, and I think coolo imagined is what Hasnas describes as a "Consent based" legal system. Something like a home owners association or a union. He admits that in theory, it could work, but in practice probably wouldn't. The transition would be ugly. (reference page 14 in the PDF I linked to for a description of Consent Based law as defined by Hastas).
Instead, his idea is to depoliticize law by removing a 3rd party's ability to judge on the basis of stare decisis. The jury decides the case without exception. The appellate courts would no longer make rulings based on procedural "gotcha's" and a re-trial would be necessary.
It would be presumptuous of me to try to paraphrase more of what I interpreted from this most recent article...but I think it's a great thing to spend some time with.
What if there wasn't stare decisis? The legal system might become more clogged than it is today. What else?
Dec 30, 2010 03:51 pm Well, I do like the idea of law not being politicized, but there still has to be some uniformity from someplace...
I am gonna try to read this stuff over the weekend to try to gain some insight...sounds interesting.
