Positive Liberty

Are your investments insufficiently risky?

How about placing a bet in a derivatives market for motion pictures.

Since making a bet on a movie so is about the closest any of us will ever get to being actual show business producers, here’s possibly the funniest four minutes in the history of motion pictures (the next five minutes are pretty good, too):

Corporations, unions, advocacy groups, nongovernmental organizations and the like are not people. Yes, I know, that sentence merely proves what a keen grasp of the obvious I have. But such organizations are ‘persons,’ at least for certain legal purposes and, more importantly, they are comprised of real people, people who join or participate in or contribute to such organizations for various purposes. Not the least of which are political purposes.

Understood as such, it should come as no surprise that the Supreme Court ruled on Thursday that key provisions of the Bipartisan Campaign Reform Act of 2002, better known as McCain-Feingold (and more properly understood as the Collusive Incumbent Elected Officials’ Protection Act), violated the First Amendment’s prohibition against restrictions on free speech in general and political speech in particular. Continue Reading »

Speaking of medical matters, I went to see my doctor yesterday and before you get to see the doctor you have to check in at the front desk, pay your co-payment, confirm that you have the same birthday you had the last time you were there and so forth. And while she’s verifying all this redundant information, I see that there’s a sign on the receptionist’s desk that reads:

I probably have better health insurance than most people because I can pick and choose every year from several competing providers. That, however, does not mean that I have great health insurance, and like just about everyone else my provider still does manage to anger me on a fairly regular basis. For example, the provider’s prescription drug plan calls for use of an online / mail order company which shall remain nameless (but rhymes with DeadCo) for prescriptions to be used for more than a month. In fairness, the company is usually pretty good with low prices for generics and prompt delivery. However, the plan requires that I use this particular company alone, probably because they have a sweetheart deal with each other.

Last month, however, I attempted to refill a prescription for hypertension. (Remember I mentioned I had high blood pressure in another post recently.) I went online, clicked the refill box and went on with my day. Then I got an email message, a recorded message on my phone and finally an actual company representative telling me they couldn’t refill this prescription. Which, by the way, they’d filled twice in the past. “Would you like us to contact your doctor to change the prescription to a non-generic?” “How much would that cost me?” “[Ten times as much.]” “No, I don’t think so. How soon will you be able to restock.” “I’m sorry, I don’t know the answer to that.” “Have you notified my health insurance company about the problem?” “I’m sorry, I don’t know.” The conversation went on like this for a minute or two, the only discernible result being that my blood pressure probably rose significantly.

So I contact my health insurance with a mildly bitchy email and call my doctor’s office to have the prescription filled at a local pharmacist. Continue Reading »

Forgive me if I suspect that New Orleans Saints quarterback Drew Brees had a bit of help penning his op-ed article in the Washington Post. Brees is a smart fellow, was an Academic All-American at Purdue, and I hope he and his Saints win the Super Bowl this year. Still and all, the Post piece has the careful construction of a legal brief and should be read as such or, more properly, as the proglomena to the NFL Players’ Association’s real legal brief now before the Supreme Court in the case of American Needle v NFL.

The question before the Court is whether and to what extent the NFL and its members constitute a single entity for the purposes of antitrust laws, and while the case at hand addresses licensing of official NFL team merchandise, the NFL Players’ Association and other professional sports players’ associations are concerned that a broad exemption from Sherman Antitrust Act restrictions would be used by the owners to undercut free agency.

I have no client or other interest in the outcome of this litigation, nor am I particularly interested in ferreting out a legal opinion on the merits and so I’ll leave that to legal scholars interested in such matters. Several non-legal and quasi-legal points do, however, occur to me here:

1. There is scant evidence that U.S. antitrust laws have proven either necessary or effective in their stated purposes. The few purported cases of monopoly caused market failure have proven less persuasive than the proponents of antitrust laws originally argued. Or, perhaps more fairly, there is far less consensus that antitrust laws of any sort are or ever were a necessary government intrusion into the market than was once generally believed.

2. However the Court decides American Needle, market realities suggest that the likes of Mr. Brees have little to fear. As long as NFL caliber players remain scarce relative to the NFLs demands, a Players’ Association willing and able to strike should suffice not only to protect but to extend collectively bargained benefits for its members. Ironically, unions work best at protecting the interests of those who need union protection the least; namely, those whose talents or training make them impossible or, in any case, impractical to replace. Professional athletes have next to nothing in common with auto workers, let alone migrant laborers and any attempt on their part to elicit sympathy from the general public is no less shameless than the team owners who manage to sucker ignorant citizens into paying for their lavish new stadiums, offering them sweetheart tax deals and the like. A plague on both their houses.

3. The litigation in question and, indeed, the legal structure of the NFL poses an interesting case of what I call the metaphysics of the law. As it is, the NFL’s thirty-two teams are indeed individually owned and they are operated in some respects with complete independence by their owners. And yet it cannot be denied that their individual values derives directly from being a part of a unitary league. Even if we had the wherewithal, you or I couldn’t start our own NFL team and demand that the league permit us entry and such. It is, if you will, the business equivalent of a closed shop or, as I’m sure the owners are arguing, a joint enterprise such that coordinating each member’s efforts is not only desirable but necessary for the enterprise to succeed. Still, there’s that individual ownership problem, isn’t there? But what if the NFL were legally a single entity? What if it was, say, a closely held corporation, each ‘owner’ holding one of thirty-two shares but each share-holder also being viewed by the overall corporation as an individual profit center. This is done all the time in other enterprises and, of course, it is certainly true that the coordinated efforts of subsidiaries of an overall enterprise do not and by definition cannot be colluding in violation of the antitrust laws. So, does it really boil down simply to the sort of organizational structure the NFL chooses to have?

4. Finally, aside from the fact that a fundamentally just society would treat sports organizations just like any other organization, can anyone explain to me how it can be the case that the United States of America should give a rat’s ass about anything so self-evidently trivial as sports? Put differently, isn’t the mere fact that Congress does intrude into MLB steroid controversies, whether the NCAA bowl championships are fair (whatever the hell that means) or whether sports teams somehow merit or need antitrust exemptions itself overwhelming proof that the government has bloated grotesquely beyond its proper reach?

Jason Kuznicki’s post at Cato@Liberty invokes mixed feelings on credit card companies. On the one hand, I remain committed to free market dogma and think, for instance, the credit card reform bill that goes into effect in February will do more harm than good.

On the other, from personal experience, in part because I am a community college professor and know folks “taken advantage of” by banks/credit cards, I’ve come to view these companies like snakes. Or perhaps crack dealers. But hey, as a libertarian, I believe all drugs should be legal. But that doesn’t mean I think most illegal drugs harmless. Most, by their nature, (not merely because they are illegal) — heroin, coke, meth — should be avoided entirely. And other illegal drugs — pot, hallucinogens — should be, if used at all, with caution.

Using the drug/snake analogy to credit cards, I advise my students, don’t get hooked or bit; learn to be a snake charmer. Continue Reading »

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