Saturday, June 06, 2009

Design Piracy Protection Act II - Rise of the Fashion Patent Trolls

I don't have much new to say about the Senate's second attempt to enact Diane von Furstenburg's wet dream of a law, the Design Piracy Prohibition Protection Act. DvF, for those of you who don't know, is a big time designer who currently heads the Council of Fashion Designers of America (CFDA). CFDA includes other tiny little "independents", like Oscar de la Renta and Donna Karan.

The DPPA, whose earlier incarnation I wrote about here, is a Three Card Monte tour de force. First they show you the money card, trademark piracy. Oh, the poor designers, having their precious Designs copied by unscrupulous, probably brown-skinned, sweatshop owners who copy the garments right down to the logos and trademarks. Then, they elicit your support, since nobody is in favor of people having their ideas stolen, much less their branding. When you look under the card, though, what you find is that the Act actually establishes clothing design as intellectual property, something only enforceable by civil action.

Back up a second. As I noted here,
First of all, note that this law protects designs, not branding. [Counterfeiting as is practiced on Canal Street in NYC] is ALREADY ILLEGAL UNDER EXISTING LAW, which are not enforced.

Second, THIS LAW DOES NOT ADDRESS THOSE ISSUES. But it will put independent designers out of business. Stop and ask yourself a few questions:

1) Who is more likely to have access to the necessary patent attorneys, independents or big designers? You are going to need lawyers to do patent searches [and applications] and to enforce claims.

2) Given that anyone in the supply chain can be sued for infringement, will you be able to hire pattern makers, cutters, etc.? Only if you can prove that you already own the design.

The biggest supporter of this law is knockoff artist Diane von Furstenberg, who recently got caught knocking off a Mercy jacket design.

This law will protect the big guys, squash what little innovation there is, and wreck US apparel manufacturing.

And another thing ... This is going to lead to patent trolls, the same way patents have in every other field. A patent troll is someone who patents all possible variations on a design theme simply so that they can control market share or set themselves up to be able to threaten potential market entrants with litigation and corner them into lucrative settlements.

Yes, the high end French fashion industry has protection. Have you ever noticed how much attention French fashion shows receive? Do you know why? It's because as soon as the show is over, designers in the US are poring over photos so they can knock them off. The industry thrives on copying, but mostly by copying the high end, not the low end. This law -- and people offering their support -- is advertised as helping the little guy, but it will actually help the big guy, who will go on knocking off the designs of the little guy because they can't defend themselves.

It's f-a-s-h-i-o-n. Everyone is looking to copy what everyone else is doing so that they can lay claim to being fashionable. At present, it's all Open Source. That's about to change. We're about to shift from GNU/linux to Windows 3.11 in the fashion industry.

Branding and logos have nearly killed the industry; no need to have innovative design if you can pass off t-shirts with collars and focus grouped pseudo colors as style. All you have to do is to associate the logo (the Swoosh, the Alligator, the Polo Player, FUBU, the name: Hillfiger, Mossimo) with a certain set of lifestyle choices in the mind of the mark consumer. Then you can pass off whatever crap you want to them at substantial markup.

Kathleen is going to have lots more to say about this, but you can start with these:

Proposed law to destroy 90% of design businesses
Fashion copyright: the death of us all

In the first one, she implores you to "Send emails. Sign the petition." Please do. Not like that has done any good in getting the attention of Congress or the MSM with regards to CPSIA, but at least we have a chance of killing this Golem before it becomes a law; there is little to no chance afterwards.

Hattips to Boing Boing and Walter Olson (Overlawyered).
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Note: If this law passes, I intend to patent the popped collar, enforce it against infringement, but refuse to actually make use of it. Perhaps this kind of thing can be stopped.

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Wednesday, April 01, 2009

What is the point of government science?

Until this morning, I had been operating under the assumption that the ban on phthalates contained in the CPSIA was (1) scientifically justified, and (2) not supported by the earlier legislation that guided the CPSC's actions. Guess I was wrong.

It's not that I have done the research on either point. On the science, I did just enough to see that this was likely to devolve into one of those smear campaigns that one sees in Global Warming or Second Hand Smoke debates. You know: every argument degenerates into an ad hominem because the scientist in question works for a university that once accepted money from a (pick one: oil company, tobacco company, chemical company, government agency) and therefore cannot be right about anything. On the legislation, I just accepted the special interest groups' claim that this legislation was necessary. I felt I should do that because this wasn't fertile ground for argument. My approach has always been that the CPSIA does not take into account the particulars of the industries regulated, so there are predictably unintended consequences (an oxymoron or not?).

If this NPR report (Public Concern, Not Science, Prompts Plastics Ban) is any guide, it turns out that career science staff at the CPSC found problems with two types of phthalates (DEHP and DINP) and got them restricted 25 and 10 years ago. Otherwise, there simply is little ground (according to their research) for concern. If the CPSC science is good, babies simply do not keep these things in their mouthes long enough to get a large enough dose. Congress' take on it?

Sen. Dianne Feinstein (D-CA) said the ban was needed because phthalates had been "linked to serious reproductive defects."

Rep. Jan Schakowsky (D-IL) talked about "potential harm to testosterone development and the male reproductive tract."

Yes, this is the same Jan Schakowsky who threatened my wife.

I'm still not interested in the science: I'll stipulate to the dangers. But one has to wonder about the utility of government scientists when the people who insist that we must have them to provide data free of conflicts of interest also refuse to accept their conclusions. I must once again conclude that the special interest groups -- US PIRG, Public Citizen, Consumer's Union -- control Congress, this time with one-sided and dubious "science" and "facts". Perhaps it's the allure of truthiness, a quality apparently not limited to the Bush Administration or Republicans despite their well-documented war on science.

And having stipulated to the science, it appears that the CPSC already had some leverage (link, caveat emptor, but also listen to the NPR story linked above):

In the United States, the Consumer Product Safety Commission (CPSC) and the Toy Manufacturers of America (TMA) agreed upon a voluntary limit of DEHP at 3% in pacifiers and teethers in 1986. Later in 1998, the CPSC asked toy manufacturers to voluntarily withdraw vinyl teething rings and rattles containing the phthalate DINP from the market.
Nancy Nord summarizes the problem nicely in a letter to the POTUS today:
Upon joining the CPSC, the new chairman will be presented with a law that curtails the agency's ability to prioritize its regulatory activity based on an assessment of risks, the magnitude of those risks, and the actual consequences of those risks.
Not to mention a hostile Congress that refuses to listen to its constituents or to the career scientists whom we pay to advise the representatives we elect to ignore us.

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Saturday, March 28, 2009

Astroturf

Given that we've already heard from US PIRG and Public Citizen, it should not be surprising that another Nader organization has decided to weigh in on the CPSIA debate. This time, it's a front organization for Big Law, the Trial Lawyers, called the Center for Justice and Democracy, and their pet blog, the Pop Tort.[1] They are dredging up the same arguments that David Arkush and Rachel Weintraub have already trotted out to the applause of The True Believers:
There is no problem with CPSIA, the CPSC has all the power it needs to make broad exemptions for small businesses, etc. The real problem is Nord, she needs to go. [paraphrasing]
I think we've already exploded that several times over. It flies directly in the face of Rachel Weintraub's statements before the committee during the hearings for the CPSIA (pdf) (HR 4040):
Unfortunately, the CPSC's ability to be proactive has been thwarted by a shrinking budget, a lack of aggressive leadership within the agency, and statutory provisions that create obstacles to the effective prevention of product risks.
...
Before proceeding to a detailed explanation of our recommendations, we wish to emphasize the importance we place on four particular issues -- Section 6(b), independent third-party testing of children's toys and products, the need to include whistleblower protections, and language clarifying the reach of CPSC's authority regarding the preemption of common law claims in any CPSC reform package.
Her recommendations then begin with an entire section -- headlined in boldface, "1. Strengthen CPSC A. Increase Budget" -- which has since been dropped by all of the pro-CPSIA crowd as an issue. CPSIA increased the budget authority, but Congress has not allocated the actual resources. Nevermind that the same people who passed the law still control the Congress, or that they have sent hundreds of billions to Wall Street, Detroit, and various other places.

After expressing support for a number of other measures designed to increase the size and scope of the CPSC, Weintraub then began to discuss lead in children's products. The boldfaced headline once again makes it clear that she wasn't talking about reasonable measures that take into account then actual risks: "Ban Lead from Children's Products". Nevermind whether or not the children can actually access the lead, or whether they are likely to come into contact with it, or whether they can actually absorb it (all of the things you would need to prove in applying for an exclusion, see below).

But the really interesting bit is this:
Lead has been found in products made by large manufacturers, as well as in those made by smaller companies. We support a ban on lead in all children's products, which currently does not exist.
They don't want a small company exemption. They are telling people that the CPSC can offer such an exemption, but the careful reader may observe that they never support their assertions with citation of the relevant portion of the law. Even their favored Chairman Moore has come out strongly against small companies (as noted below).

They don't want reasonableness. In her testimony, Weintraub said this:
We recommend that the language be preceded by the following statement, which is included in S. 2045:
"the prohibition contained in section 2(A) shall apply without regard to whether the lead contained in such children's product is accessible to children."
What about exemptions for inputs (cloth, dyes, components) or component testing versus final product testing? Again, Weintraub is against any compromise:
To assure that products are safe when they enter the American and global stream-of-commerce, safety must be infused into the earliest stages of the supply chain. For this reason, independent third-party testing of final products, as well as components, must be required [emphasis added]. Third-party testing entities must be independent from and have no financial relationship with the manufacturer producing the product. Testing must be conducted to identify design flaws as well as violations of existing regulations [emphasis added], such as those governing the use of lead paint. Components and final products must be tested at numerous stages of production and tests must be conducted randomly throughout the manufacturing process [emphasis added]. Products should also be certified that they meet the appropriate standards and should bear a label indicating that they are certified.
Testing for design flaws? Who will judge that, and by what standard? This is a statement that effectively places all decisions on design within the federal government as advised by Ralph Nader and his devoted followers, Rachel Weintraub (Consumer's Union et al), Ed Mierzwinski (US PIRG), David Arkush (Public Citizen) and Joanne Doroshow (Center for Justice & Democracy). Dissenters need not apply.

More recently, Weintraub reacted to reports that CPSIA is seriously flawed with what has become the party line: "Nord has to go. The law has to stay. And don't worry, they will address your concerns." Compare these new sentiments to her older comments quoted above:

"The most important issue right now is to ensure that there is strong, effective leadership at the helm of the Consumer Product Safety Commission," Weintraub said.

She emphasized that new leadership is vital in order to begin implementation and enforcement of the CPSIA -- which, among other things, mandates lead-testing for certain products intended for children--with "a common sense approach consistent with the law."

Weintraub acknowledged industry concerns about the law, particularly those having to do with the costs of testing products for compliance. However, she decried efforts to have the law revised as attempts to have it "opened, gutted and weakened."

The law as written, according to Weintraub, already addresses "almost every common sense concern," including those related to children's clothing and books. "Textiles that are 100% fabric ... and books printed after 1985 do not contain lead," and do not need to be tested.

An exemption for testing of textiles that are 100% fabric essentially means "togas". Except for togas, no final products consist of 100% fabric: diapers, sheets, and other "simple" products also contain thread and various other components such as interfacing and dye. Is she now endorsing component testing and opposing the random testing, in-process testing, and final product testing that she earlier claimed "must be required"? I doubt it. These are appeasements intended to shut down -- or shut up -- the opposition.

In a particularly nasty posting containing a variety of outright lies, and ironically entitled, "True Lies: Debunking A Major CPSIA Myth [2]", the also ironically titled CJD asserts that the CPSC already has already asserted its own power to issue the small business exemption. As evidence, they cite the "Children's Products Containing Lead; Final Rule; Procedures and Requirements for a Commission Determination or Exclusion". All such rules contain a statement regarding compliance with the Regulatory Flexibility Act (RFA) which requires agencies to consider the compliance cost on small businesses. Their interpretation of that statement in the linked document is:
Here, the agency decided the CPSIA's impact on small businesses wasn't bad at all. Why? Because of its authority to issue exemptions to small businesses from the CPSIA!
The actual statement?
The Commission's Directorate for Economic Analysis prepared a preliminary assessment of the impact of relieving certain materials or products from the testing requirements of section 102 of the CPSIA. The Commission preliminarily found that the proposed rule would not have a significant impact on a substantial number of small entities. The procedures and requirements would allow certain businesses, including small businesses, the ability to seek determinations and exclusions which would allow these entities to continue to manufacture their products without the continuing cost of testing the materials for the presence of lead. Based on the foregoing assessment, the Commission certifies that the rule issued today on procedures and requirements would not have a significant impact on a substantial number of small entities.
Is this a small business exemption? No. It says that small businesses can apply for the "determinations and exclusions" which were the subject of the ruling. In that regard, they are no better off than large manufacturers. It does not grant them a "small business exclusion", it grants them the same right to apply for exclusions as large businesses by the following method:
For products that exceed the lead content limits prescribed in section 101(a) of the CPSIA, any requests seeking an exclusion must submit documentation based on the best-available, objective, peer- reviewed, scientific evidence showing that lead in such product or material will not result in the absorption of any lead into the body, taking into account normal and reasonably foreseeable use and abuse by a child, including swallowing, mouthing, breaking, or other children's activities, and the aging of the product, nor have any other adverse impact on health or safety. This is the standard by which the Commission will review such requests for exclusions. A justification submitted by an interested party for an exclusion should provide:

A detailed description of the product or material and how it is used by a child;

Representative data on the lead content of parts of the product or materials used in the production of a product;

All relevant data or information on manufacturing processes through which lead may be introduced into the product or material;

Any other information relevant to the potential for lead content of the product or material to exceed the CPSIA lead limits that is reasonably available to the requestor;

Detailed information on the relied upon test methods for measuring lead content of products or materials including the type of equipment used or any other techniques employed and a statement as to why the data is representative of the lead content of such products or materials generally;

An assessment of the manufacturing processes which strongly supports a conclusion that they would not be a source of lead contamination of the product or material, if relevant;

Best-available, objective, peer-reviewed, scientific evidence to support a request for an exclusion that demonstrates that the normal and reasonably foreseeable use and abuse activity by a child (including swallowing, mouthing, breaking, or other children's activities) and the aging of the material or product for which exclusion is sought, will not result in the absorption of any lead into the body, nor have any other adverse impact on health or safety. This literature should support a request for exclusion that addresses how much lead is present in the product, how much lead comes out of the product, and the conditions under which that may happen and information relating to a child's interaction, if any, with the product; and

Best-available, objective, peer-reviewed, scientific evidence that is unfavorable to the request that is reasonably available to the requestor.
All I can conclude about "Joe Consumer" [henceforth known as Paid Shill for Big Law in accordance with this site's policies regarding symmetric comment policies] at Pop Tort is that if his assertions were due to an honest mistake, he can and should correct that blog posting; otherwise, I can only conclude that if these people at CJD are lawyers, they aren't very good lawyers, or they are very unethical lawyers.

The rest of the Pop Tort "debunking" is about as nutritious and wholesome as its quasi-namesake, consisting of anti-Nord smears and a few other false statements. One of those is that the Commission should have already completed issuing rulings on testing protocols, but still has not done so. Recalling even Rachel Weintraub's statements about the lack of staff and underfunding, it is worth noting that in addition to having to enforce the CPSIA and its aggressive set of required rulings, the CPSC has also been saddled with the Children's Gasoline Burn Prevention Act of 2008 and the Virginia Graeme Baker Pool and Spa Safety Act of 2008. These latter two laws are arguably much more important than CPSIA because actual children have actually died from gasonline burns and pool drain issues, while nobody has died from lead poisoning from a garment. Even so, no, the CPSC could not have issued final rulings because of the heavy schedule imposed by the CPSIA and the continuing limitations of staff and budget due to Congress, not Nord (alternatively, we could conclude that Nord, Moore, Weintraub, and others were incorrect or lying about staff and budget back in 2007 and 2008, but I doubt the Naderites would be willing to adopt that argument). Eight (8) CPSC rulings were mandated by law between 8 August 2008 and March 2009 and seven (7) more are required by August 2009, in addition to six (6) sets of Test Procedures and Accreditation requirements, and numerous rulings not specifically required, such as findings on the retroactivity of the lead ban, findings on the retroactivity of the phthalate ban, and defending the latter in court against special interest groups who advocate a hard-line interpretation of the rulings with exemptions for nobody, regardless of their public statements about the ease with which CPSC can make hardship exemptions. The final rulings on lead testing are not required until August 2009. Incidentally, several of the standards change in August 2009, so all testing done until now will be null & void unless manufacturers -- who still have not been granted any exemptions or stays from the requirements to comply with lead levels -- have been testing at the more stringent level.

To see what the CPSC really thinks of small businesses -- regardless of what the Naderite puppetmasters are saying publicly -- one need only look at the statements of Thomas Moore, the "good" commissioner, upon the announcement of the stay of enforcement. He said,
Many of the smaller businesses do have legitimate concerns about how they will comply with the new law and the cost of the new testing and certification requirements. However, their fears are being fueled to some extent by others who, through an aggressive misinformation campaign, are trying to create a groundswell of panic that will lead to the repeal of the testing and certification requirement entirely.
The goal of the testing and certification provision is a sound one: to make sure every manufacturer of a children's product, no matter their size [emphasis added], regardless of where they are located, knows the standards that apply to their products and takes the appropriate steps to ensure compliance with those standards before the products are put into the hands of consumers. The closer we get to that goal, the fewer recalls our agency will have to undertake and the fewer injuries we will see to children.
Note first that he is ambiguous on the point of whether their concerns are legitimate or fueled by misinformation. He was parroting the party line of the special interest groups at that time: "there are no problems with the law, there is only a misinformation campaign conducted by some nebulous and nefarious group out there." He is offering to note their concerns and at the same time to dismiss them; the former to make them think that he gets it, the latter to assure his handlers that he isn't swayed.

Note second that it does not offer any exemption related to business size. The rest of Moore's letter emphasizes the ways in which small business might be able to comply, but no size-based exemption is in the offing. The game continues.

This rhetoric is a classic shell game, a bait & switch. The Naderite grifters are running this game brilliantly: here they offer a chance of component testing, there they pull it away; here they offer a small business exemption, there they pull it away. In their official statements before Congress and the courts, it is all hardline, take-no-prisoners, "safety vs. profits", while in their press releases intended to appease the legitimate concerns of small businesses, they talk about exemptions and the possibility of "reasonableness". The legislation was intended to remove the reasonableness and lattitude the CPSC had in enforcing the existing statutes (including the Flammable Fabrics Act), but you wouldn't know that from their non-binding public assertions. It's the iron fist in the velvet glove.

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[1] The title is a reference to the practice of creating organizations which have the appearance of grass-roots organizations, but are not. Many of Nader's organizations are front-groups for the enrichment of Ralph Nader, while others (CJD) are front-groups for Trial Lawyers and other special interest groups. They are actually very small groups of people who work with each other in interlocking groups to give the appearance of being a much larger "movement". See Walter Olson's earlier work to expose the inappropriately named Center for Justice & Democracy.

[2] Incidentally, you can try to comment on the post at Pop Tort, but they won't publish it unless they can put you in a bad light. I commented, nothing. Kathleen commented, nothing. Kathleen commented on their asymmetric commenting policy (they commented on all of the CPSIA reform blogs) and that one he published. This is the same policy enforced on the US PIRG blog (which Rick Woldenberg has noted).

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Sunday, January 25, 2009

USPIRG:Hanlon's razor meets its match, part II

Part I, the sleazy background, is here.

UPDATE: If you are coming here from Etsy looking for "The Answer", it ain't here. If you are coming from the link that says I am USPIRG, please go back and note the retraction; it should be obvious that I am not. This post is not "about" rabbithorns, who is simply an example of the kind of real misinformation that is out there (as opposed to the strawman kind that US PIRG keeps positing). If you want to know more about CPSIA, you can click the CPSIA tag at the bottom of this post, or go over to www.Fashion-Incubator.com where Kathleen has been posting about it for several months, and where many of us have been trying to disseminate real, useful information in the forums. Finally, if you think that I am calling Etsyists "misinformed", "ill-informed", or "yahoos", please read carefully. I am saying that there is misinformation at Etsy. I give a specific example of it. In general, it is the innocent error of people desparately trying to cling to their chosen livelihood. Does that mean I think all Etsyians are misinformed? No. Does it mean that even a significant percentage are? No. As anywhere, many of the worst offenders there get the most attention.

GenerationTieDye, thank you for your patience. Apologies for not having noted your retraction, that was irresponsible of me.

Continued from part I ...

But no matter, because the United States Public Interest Group (USPIRG) is here to save the day and strike the anti-CPSIA misinformation movement at its roots! They apparently intend to do this by a campaign of malicious disinformation, much of which matches in sheer wrongness the non-malicious misinformation which comes from the free-wheeling rumor mills at Etsy [1]. In a letter received by one of Kathleen's many minions, USPIRG included their own FAQ which stands as a monument to bad writing (in both senses).

The document starts out innocuously enough: they stress the purpose of the CPSIA, which "requires what many consumers already thought was law--that certain children's products must be tested for safety before they are sold. This is one of the most significant steps leading to a safer marketplace for our children." Let's see how well they pay attention to this as they proceed, but not without noting that the purpose of their FAQ is to clear up "a lot of unnecessary fear and incorrect information circulating about the CPSIA and its new requirements." Let us also see how they do with that.

Question 1
They introduce the canard that they apparently think will take them out of the mess they helped create. Yes, it's the "natural materials exemption" -- they even link to the proposed rule! Now, let's see, where did that Request for Comments at the CPSC website go to? Oops, perhaps this is a new regulation that has apparently been suspended by the incoming administration? Hmm.[2] Well, anyhow, let's think about their phrase, "natural clothing" for a second. I'd like to know who asked that since I have never heard that phrase. Natural materials, natural fibers, but "natural clothing"? It must have escaped their attention that nobody makes clothing that is made of 100% undyed natural fibers, much less "precious gemstones, wood, ... as well as certain metal alloys". If they did, I'm afraid it would look much like this (but without the bright colors):























Question 2
In question 2, they attempt to ignore a question regarding the unintended consequences of the act by pointing out that the intent and goal of the law did not intend to create unintended consequences. Well, that is in effect what they say. The question is, "[As it stands now], will this law result in the big getting bigger and even more of our toys coming from China?" The first answer is to state that this is not the goal or intent. Duh. Then it makes the non sequitur argument that since everyone has to test, the playing field is level. Apparently, they have never heard nor thought about "economy of scale" or the differences between "fixed costs" and "variable costs" and what those mean to small businesses. Which you would think would be important considerations when discussing the differential effects of this law on small and big businesses. But just to make sure the questioner didn't go away feeling insulted or confused, they drop in another non sequitur, "Domestic toy companies, irrespective of their size, can make and sell safe toys." Actually, this was never in question, but now they seem to have forgotten that "one of the most significant steps leading to a safer marketplace for our children" is that "certain children's products must be tested for safety before they are sold."

Oh yeah, ... the testing.

So, then they're off on a lecture about the importance of testing. They seem to forget that the question had to do with the differential effects of the testing requirement on small and large companies. Or perhaps they wanted you, dear misinformed reader, to forget that. "We're talking children's safety now, never mind the unintended consequences!" They end this rant on one of those instances of really poor writing: "Any exception or exclusion from testing requirements, as included in the CPSIA must be based on the principle that the product will not harm consumers by causing the absorption of lead." Aside from the sheer awkwardness of that statement, it is wrong. Products don't cause the absorption of lead: biochemistry does. Products may make the lead available in the environment to be absorbed, but ... ah well, you get my point.

Question 3
The third question asks them to respond to the HTA claims that small, home-based toy makers cannot afford $4000 testing. They begin their answer to this with a dose of condescension: "Let's not forget common sense." Too bad they forgot common sense when they sat in front of Congress and told them to expand the applicability of the law to all children's goods intended for kids 12 and under, and when they insisted on final unit testing. But then their answer goes off the rails. It makes an appeal once again to the as-yet nonexistent "natural materials exemption", and then compounds this by introducing the claim that you can use tested materials. This is "component testing" and at this time it is not allowed. Many people have argued that it should be, but the PIRG representatives that testified before Congress wanted both component and final product testing.

This answer ends with yet one more expression of their doubt over the cost of testing. Over and over, they have been in the press and cyberspace claiming that the expense of testing has been overstated. It would seem to be a simple matter for them to find a manufacturer, offer to help him in the testing process, and then produce the invoices. They haven't, we have, they are wrong, we are not. Unfortunately.

Question 4
In the answer to Question 4, they assert "U.S. testing laboratories typically charge about $50 to test for lead." This once again demonstrates their utter lack of knowledge about manufacturing or testing. While the $50 is close (I have seen quotes from $5 to $90), this is only part of the story. As we have explained ad nauseum, if you have a child's onesie with snaps, tag, and decorations (a different type of fabric or ribbon around the neck, arms, legs, etc.), you may have to conduct 5 different tests (fabric, thread, snaps, ribbon, tag). If you furthermore run that same article in 5 different colorways, you cannot use the tests for the snaps on the first unit for subsequent tests. So your bill for a line of onesies in 5 colors may be more on the order of 5 x 5 x 50 = $1250. And we haven't even started talking about surface lead testing or phthalate testing, much less the testing required on special products like children's sleepwear (flammability). And this is a relatively simple item.

So, who is doing the misinforming here?

Question 5
In Question 5, they tackle testing by retailers. It's difficult to understand what the point is -- who is really asking this question? It seems that the point of this is to give them a platform for the second half of their question, which is irrelevant and pedantic. In any case, the first part isn't much better than the other "answers". Their answer that retailers don't have to test is factual, but it doesn't help retailers who cannot get their vendors to test or even to recognize that they need to test. 2/3 of the hundreds of retailers Kathleen surveyed say that their vendors do not know of the law, or that they believe it does not apply to them. Retailers are stuck in position of (A) sending it back and hoping to get their money back from judgment-proof vendors, (B) testing it themselves, or (C) burning what hasn't sold by 10 February. Walmart and other large chains have the leverage to force (A) on their vendors; everyone else is going to try (B) before they try (C). So while the USPIRG may be literally correct in saying that as a matter of law retailers don't have to test, USPIRG is wrong because as a matter of survival they have to test. But we should expect USPIRG to let a little thing like survival stand in the way of safety.

Question 6
The PIRG's answer to question 6 is beautiful! They are asking the reseller question. Their answer is multiple part:

1) No, you don't have to test.

2) Don't worry, they won't enforce the law when it comes to you. Go ahead and flout the law!

3) Besides, you were already responsible for obeying the law before, so why worry now?

4) Back to Congress' intent: they didn't mean to put you out of business.

So, despite their note at the beginning of their FAQ about the importance of testing, and repeated warnings that nobody should be given a pass when the safety of our children is at stake, they're going to give resellers a pass. Because their products are inherently safe? No! Because the CPSC said they weren't concerned about them. USPIRG neglects to point out that in their press release, CPSC was careful to warn that despite not having to test, resellers would still be held accountable for selling illegal products:
The new safety law does not require resellers to test children's products in inventory for compliance with the lead limit before they are sold. However, resellers cannot sell children's products that exceed the lead limit and therefore should avoid products that are likely to have lead content, unless they have testing or other information to indicate the products being sold have less than the new limit. Those resellers that do sell products in violation of the new limits could face civil and/or criminal penalties.
But don't worry if you're violating the law -- USPIRG says you don't need to worry! And besides that, they say that you were supposed to comply before (with laws that didn't require documentation of testing, much less testing), so that should help you sleep easier at night. And besides, they didn't mean this and as we all know, intent counts more than actual outcome.

Question 7
Finally, in Question 7, USPIRG poses the obvious question about how useful the natural materials exemption will be. What good is plain, undyed cloth except as a toga? Their answer: "We don't know." Actually it is, "Any further details, explanation, or guidance on this issue can only -- and should soon -- come from the CPSC." Which amounts to, "We don't know."

Summary
So let's look back and see how they did at clearing up the misinformation and remembering that the testing is the most important part of this law.
  • Q 1: Offer the as-yet non-existent natural material exemption (which has the side benefit that testing won't be necessary)

  • Q 2: Offer the intent and goal of the law in place of an answer to the concerns about economy of scale. Incorrectly assert that the playing field would be leveled by this law. Forget to note that testing was the problem, not the ability to domestically manufacture toys. Emphasize testing as the basis.

  • Q 3: Another appeal to the natural material exemption. Suggest component testing, something else not currently allowed. Doubt the expense of testing.

  • Q 4: Claim that testing costs $50.

  • Q 5: Note (correctly) that stores don't have to test.

  • Q 6: Tell resellers they don't have to test. Tell them not to worry, they can break the law because the CPSC is not coming after them despite strong language by the CPSC that they may not sell illegal items. Tell resellers things are no different than they were before.

  • Q 7: Tell everyone that they don't know anything about the implication or utility of the natural materials exemption.
By my count, they got 5 and 7 correct (stores don't have to test, and CPSC is responsible for answering these questions, not USPIRG), but mislead on 1, 2, 3, 4, and 6. They were ambiguous about their commitment to testing; in Q1, they offered a way around it. In Q 2, they forgot about it, then came back to it in an apparent attempt to misdirect. In Q 3, they mislead about the types of testing allowed. In Q 4, they showed how little they know about the most important part of CPSIA, the testing. In Q 6, they told resellers not to worry about testing -- not because they were on the side of the law, but because the CPSC has indicated it might just wink at them. Somewhere in that answer, they forgot to address the, uh, what was it? Oh yeah, the children and their safety and the only thing that would deliver the latter: testing.

So I ask: are they doing this out of malice? Or should we apply Hanlon's razor and conclude they are merely incompetent? Either way, I think we can agree on the results:

USPIRG: FAIL

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[1] Just to give you an idea of how bad Etsy can be, consider this thread. It begins with this bit of misinformation:
The authors of the law have already conceded they intended for it to be applied to imports mainly, not small home businesses in this country.

Plus just because something is law, doesn't mean anyone is APPLYING the law. It has to then go to its regulatory agency, which in this case might be the FDA. But that also hasn't been decided yet. Then the FDA(whoever) decides how and to whom this will apply. So the law has no body of jurisdiction until it is assigned to a regulatory body.
For the unitiated, let me point out what all is wrong with that. First, nobody has conceded any such thing about imports; the law is clearly intended to apply across the board. Second, the law is explicitly designed and assigned for enforcement to the Consumer Product Safety Commission (CPSC); indeed, the second half of the Act (Title II) is mostly about reforming CPSC, but CPSC is mentioned prominently and repeatedly throughout Title I. The FDA has nothing to do with it. The poster (rabbithorns) goes on to say several posts later,
HipMelon, if you get hauled off to court I will represent you for free. (depending on what state you're in - I can't practice everywhere because that's the law...)

Yes, tiptopapplesauce, I will ignore THIS law. Why? Because NO ONE knows how it will be applied and to whom it was actually targeted until its regulatory agency decides that. Technically, according to the legislative process, it's not really an applicable law yet.
That was posted 23 Jan 2009, 5-1/2 months after the CPSIA was passed. What lawyer in the world would advocate this? But then, what lawyer in the world would be stupid or arrogant enough to assert that people could determine on their own if they should test their products based on a "relevant risk" test that does not appear in the law itself?

[2] To be fair, if you know that the document has something to do with "lead content limits on certain materials", you can hunt around until you find a link to a pdf page out of the federal register. No, that's not a terribly descriptive name, is it? But the document which lists the questions has gone missing from the comments section.

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Monday, January 19, 2009

CPSIA - size doesn't really matter

UPDATE: Also, don't miss this and this at Overlawyered.

I have been hammering on one aspect of this CPSIA fiasco for some time now. In reaction to the sanctimonious "defenders of the public good" at USPIRG, PC, UCS, KID, etc., I have been trying to point out that they have supported a law which favors mass production and economy of scale even as they speak out against "Big Business". But now it's time to look at other angles; it's a complex mess, so there are many to choose from. [1]

First, there seems to have been a failure to distinguish what is meant by "large" and "small" manufacturers. I have probably been guilty of this myself whenever I was making reference to economy of scale and mass production. There is no "bright line" rule to distinguish the large from the small, the mass produced from the merely large production run, no answer to the Sorites paradox. There will be a temptation, I think, to use arbitrary numbers like "sales greater than $1M" or "fewer than 5 employees," but these will be less than satisfactory.

The million dollar level brings to mind rich people running sweatshops, but it is commonplace to generate sales figures like that with a reasonably small company of happy employees and -- while generating a comfortable living -- without making anyone fabulously wealthy. That is the beauty of entrepreneur capitalism (as opposed to finance or the "other" kind): it generates jobs and meets consumer demand without generating a great deal of inequality. Setting an exemption for companies smaller than some arbitrary size like this is going to have negative repercussions on both the jobs and consumer fronts.

One of those repercussions is the devastating impact it is going to have on the companies which, while big enough to be regulated, are still smaller than the rest. Their sales may fluctuate from year to year, so it may not always be clear to them if they are going to have to test in any given year. If they tend to compete with manufacturers below the line, they have a cost disadvantage because the other guys don't have to test. If they tend to compete above the line, they have a cost disadvantage with companies with large production runs. The middle will tend to get squeezed more than either end, and will therefore collapse.

The second repercussion will be a cyclical problem. As the middle clears out (everyone either gets big or fails), consumer choice will deteriorate. Consumers will start finding the smaller manufacturers making interesting stuff. Those smaller manufacturers will see demand skyrocket and will attempt to meet it. They will grow rapidly, probably making it to the level of the bright line rule. Suddenly, they will have to change their game to incorporate product testing into their production processes. Many of them will respond in one of several ways: either they will manage it well; manage it well but face a change in their pricing structure leading to a drop in sales; manage it poorly and see their costs quickly overtake their revenues; or manage it poorly by hoping to get away without testing.

Is the latter a big deal? We have been watching the tweets and posts of Jennifer Taggart, a lawyer who owns her own XRF gun (anyone remember Paladin?) and has been posting some of the interesting results. It is interesting how many bits of hardware -- mostly bling -- that fail the lead tests. So far, she has found the following:
(1) Vinyl is often stabilized with lead. So, I've found lead in fake leather, vinyl purses (particularly children's and doll purses), vinyl or fake leather shoes, vinyl raingear, diaper changing pads, diaper pages with built in changing pads, vinyl changing pad covers, vinyl mattress covers, etc.

(2) Fake pearl, fake shell or opalescent buttons. Almost universally. [also, she recently tested sequins with the same result]

(3) Fake inexpensive pearl decorations attached to clothing or in children's jewelry.

(4) Some red dyes in textiles.

(5) Lots of those decals on the front of t-shirts. I'm not a fabric industry person, so I don't know if they were ironed, heat transfer, screened or what. They seemed not to be silk screened but I don't have the vocabulary to be accurate.

(6) Crystals. The lead may not be accessible but the lead is generally well above 600 ppm.

(7) Charm like decorations attached to clothing.
At the risk of slaying the sacred cows of some of the really small manufacturers, many of them tend to buy blanks -- unadorned t-shirts, onesies, and so on -- to decorate. This is one of the many easy ways to enter the industry. Unfortunately, they seem to think that since they aren't buying anything that says "Big Al's 100% Pure Lead Geegaws", since they aren't a big name manufacturer, and since they sew at home and don't have employees, then obviously they aren't violating the law (and in some cases have decided that they aren't even a manufacturer). At the risk of getting off topic, many of them are WAHMs (Work at Home Moms) or "Mom-preneurs" and believe that the fact that their bodies spontaneously (or nearly so) grew and then shed an independent life somehow gives them an aura of saintliness and whatever they produced by gluing lead crystals to a t-shirt blank therefore has a patina of perfection. This attitude is at least as dangerous as what might happen at the opposite end of the scale, if not more so.

At the other end of the production scale, large producers work directly with mills and hardware manufacturers to create custom ensembles of products. Also, they are an easier target for lawsuits both because of their visibility and their deeper pockets. Your kid swallows a lead pendant from Reebok, they settle for an undetermined amount; your kid swallows a lead pendant from some unknown working in her garage, you never find her or, if you do, you win a suit and will be lucky to see the funeral costs covered (I think they call such defendants "judgment proof"). The large producers may be more motivated and able to make sure that nothing enters their production stream that would fail a test. May be: Mattel didn't.

So we will find a constant problem with small companies growing into the range of the bright line rule delineating "big" from "small" and then finding that they have to do things that they never had to before. Some will be successful, others will not.

In fact, one really difficult problem will be determining during the course of a year whether or not you meet the new rule. Say I ended last year with $999,999 in sales. I don't have to test, right? But in October or so of this year, I sail through the $1M mark. Now, do I have to go back and test everything I made this year? Or do I see it coming and lay everyone off in September? Same thing with hiring employees: rules that kick in at some level usually force such companies to avoid maximum efficiency: they opt to avoid growing, hire temps, or they outsource.

Another aspect to this is the fact that it is not just manufacturers who are affected, but also distributors and retailers. They are not going to want to risk confiscation, fines, or jail, and will therefore insist that everyone -- large and small -- deliver the GCC documentation. For one thing, they can't advertise products as safe unless they can back up the claim. So small producers will have to produce the GCC and therefore pay for the testing even if the government exempts them. It isn't what Nanny Sam wants, it's what your customers want. In this case, your customers are retailers, and they're afraid of Uncle Sam. In fact, Wal-mart isn't just asking for GCC's, they're asking for the test results.

There is a further differentiation between retailers and manufacturers. Fly-by-night manufacturers can set up sweatshops and produce without giving a single thought to compliance. They can forge test results and GCCs. They can sell their products through traveling reps, at trade shows, and so on. When they get raided, they shut down one facility, incorporate under different names, and start up a new one. Location doesn't matter to them. That is absolutely not the case for retailers: if they aren't in the same location under the same name day after day, they never get the foot traffic to make sales possible. Retailers have more reason to be paranoid and therefore most strict about enforcement.

So everyone who thinks that a small business exemption will solve your problems, think again. Small business will not be able to sell into any meaningful venue. I'm not sure how this plays into the dynamic of the rapid growth of some of those small businesses: it makes it more difficult and so possibly means that only the better business managers will succeed in getting to the higher level and will therefore be okay, but on the other hand it makes it more difficult for anyone to get larger.

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[1] Which is why it should be repealed so we can start over.

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Thursday, January 15, 2009

Meet the new boss

The status quo ante, as they say, was as follows up until August 2008:
  • You could not sell children's products with an excess of 600 ppm lead content.
  • You did not have to test to determine that.
And that, as they also say, was the source of all of our problems in the past few years. In her prepared remarks before the Subcommittee on Commerce, Trade and Consumer Protection of the House Committee on Energy and Commerce (the Rush Committee), Rachel Weintraub said
To assure that products are safe when they enter the American and global stream-of-commerce, safety must be infused into the earliest stages of the supply chain. For this reason, independent third-party testing of final products, as well as components, must be required. Third-party testing entities must be independent from and have no financial relationship with the manufacturer producing the product. Testing must be conducted to identify design flaws as well as violations of existing regulations, such as those governing the use of lead paint. Components and final products must be tested at numerous stages of production and tests must be conducted randomly throughout the manufacturing process. Products should also be certified that they meet the appropriate standards and should bear a label indicating that they are certified.
Shorter Rachel: You must test. No, you must pay someone to test. They must test the components, the intermediate products, the final products. You must test and test and test. Then they should be certified that they are tested.

Shorter shorter Rachel: No test, no safety.

And she wasn't alone in this opinion.

This was all very alarming for resellers of children's products. Since every item was unique, or at least since they couldn't possibly tie them all to any reasonable lot number, they would have to test everything. That's prohibitive, to say the least. This was effectively a ban on selling used children's goods [1].

Fortunately for them, the CPSC stepped forward with the following clarification:
The new safety law does not require resellers to test children's products in inventory for compliance with the lead limit before they are sold.
Woohoo! Problem solved, right? Well, ...
However, resellers cannot sell children's products that exceed the lead limit and therefore should avoid products that are likely to have lead content, unless they have testing or other information to indicate the products being sold have less than the new limit.
Oh.
Those resellers that do sell products in violation of the new limits could face civil and/or criminal penalties.
Uh-oh.

Maybe the CPSC's former spokeswoman, Julie Vallese, can clarify? At 4:23 or so, "If they have a level of confidence that those things that they are selling is not in violation of the new lead limit, then they by all means can continue to sell those products." Simple, right? Because of your previous career as a chemical engineer, your "confidence" is an unusually accurate way of determining lead content. For the rest of us, does someone have a confidensometer? Later in the video (5:404ish), she says, "they could call the manufacturer and ask them whether or not there is any lead used in the manufacture of the product." Wow, even though manufacturers themselves cannot use this method? Or "they could use XRF technology"; well, until August, and if you have the $40,000 for a gun. Perhaps the Magic 8-ball would be as valid? "Does this product have lead ... 'Ask again later.' I guess this one goes back into the warehouse." Now that you have Vallese's non-test-based testing mastered, perhaps you would like to learn about missile guidance systems?

But many of the people who are claiming that there is no problem with this law are looking at this clarification as a triumph of the process. "See?" they are in effect saying, "You don't have to test. Just don't let us catch you selling anything illegal. All of the people talking about the expense and stupidity of this law are just exaggerating." Wow, they were so smart.

For resellers, here is the status quo post, or however you say, "from here on out" [2]:
  • You can not sell children's products with an excess of 600 ppm lead content.
  • You do not have to test to determine that.
Yes, this is much, much better than the way it used to be, way back in '07. This law is practically perfect in every way. Not absurd at all.

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[1] But not burning them. A law mandating an increased carbon footprint? Go figure.

[2] Until they drop the lead limits. And have we talked about bonding?

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Sunday, January 11, 2009

Man on Fire

This is awesome. Go read it now. Here's a clip, but just go read the rest of it now.
How shall we deal with this complex situation? The first step is obvious - read the law. We did, we read the CPSIA. It says everything's illegal, all the things that we make, unless we prove they are legal. OMG, you're kidding! No, wait, somebody told us that the CPSC has written some "implementing rules". We look there, and somebody spots a rule on page 7 that says wood and certain fibers are okay. Yippee, that's something at least! And there's another one on page 18 and we think this one paragraph on page 37 might do us some good (you know the one, subparagraph 1513.3(a)(ii)(C)(IX)). . . . We hear from a customer that there was a FAQ . . . so we download every FAQ since 2007 and scrutunize them with four lawyers at our side.
Read the comments too. Read his other entries. Watch the movie. Collect the whole set. Rick Woldenberg is my hero. He may soon be looking for a job; I am thinking either "best-selling author" or "bomb-throwing anarchist". He is qualified for the former, he is being accidentally trained to be the latter.

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Saturday, January 10, 2009

What are profits?

I'm detecting a thread of misunderstanding while looking through various reactions to the CPSIA. Many commenters are framing this as "profits vs. safety" without thinking about what they mean.

Are profits always and everywhere a bad thing?

Keep in mind that the producers who are going to be harmed the most by this law are people for whom profits are "whatever is left over after you subtract costs from revenue". In most cases, this means their income since many of them do their own production and are their only employee. Wages, pure and simple. I have received enough information from many of them to know that we aren't talking about $Millions or even $hundreds of thousands, but rather somewhere in the $14k-$80k range. In other words, a decent living, a living wage -- you know, the kind of thing ACORN wants for everyone except their own employees. Of the few who have million-dollar businesses, they are typically providing employment to a few people and still find themselves getting not much more income out of the business than those employees. We're talking strictly middle class, not John Rockefeller.

The people who benefit the most from this law are large manufacturers who can spread the cost of testing (and litigation!) over thousands or millions of like products. These are the companies who traded in their "manufacturer" hat for a "branding" hat; they practice the GM style of management where intellectual property and marketing are the core areas of their business and manufacturing labor is a variable cost to be eliminated; the profit on the next quarterly statement is the goal (and with it the management bonus); manufacturing is a necessary evil. I'll note that Hasbro sat in front of the subcommittee, testifying in favor of some of the key (and most expensive) provisions (prepared remarks - pdf!):
Hasbro supports mandatory third party testing.
How, you might ask, did Hasbro know about this at least four days before the committee hearing in November, 2007? And get an invitation to speak? So, accuse me of approaching this like a Marxist, but the beneficiaries are the ones who are earning an excess profit, and it is this definition that the "safety vs. profit" commenters are implying, but clearly Hasbro sees profit in this brand of safety.

So "safety vs. profit" is a false choice. If there is a choice, it is between entrepreneurial profit on one hand (aka wages), and state capitalist profit on the other (aka returns on capital). Each has their own safety issues, but overall I would assert that safety is more likely to come out of the former than the latter, especially if we were to compare systems based on those models.

But that's not really as catchy as "safety vs. profit", is it? Oh well, with Jon Stewart, Jay Leno, and Bill O'Reilly in charge of our infotainment and Al Franken in the Senate, we are entering the era of governance by one-liner.

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Friday, January 02, 2009

What the mutualist world looks like

Without introduction:


From here. I'm particularly interested in her discussion of open-ended toys. Hard to believe kids played before branding.

While you're watching this, keep in mind that what she is doing is going to be a criminal activity next month. By criminal, I mean fines of $100,000 per violation up to a total of $15,000,000 and incarceration of up to 5 years.

Also, these are amusing:



and



I don't know of any evidence to support his claims that Big Box retailers were behind this, but se non vero e ben trovato (even if it is not true, it is well conceived). From what I can find, this legislation was passed on the recommendation of US PIRG, Public Citizen, Fear, and Shameless Pandering. If Walmart is the bootlegger to that Baptist cabal, well, all the more shame to be heaped on the Naderites' heads. It works out for those larger companies and retailers in much the same way that the large meatpackers were aided by the moral cover provided by Upton Sinclair's The Jungle and the resulting meatpacker's competition reduction act Meat Inspection Act. It makes it more expensive for small producers, and turns potential torts against retailers into a federal law enforcement problem. The costs are socialized, dispersed, and hard to see; they consist of unemployed small producers and their employees, fewer selections for consumers, and higher prices. The gains are privatized, concentrated, easily seen; they consist of higher profits for mass producers. The professed goal -- greater safety for children -- is probably nonexistent and possibly thwarted, since this works to increase the market share of the same mass producers who were responsible for the problems in the first place.

The products recalled in 2007 were already out of bounds of the Federal Hazardous Substances Act, so rather than enforce that law, we made a new one that grants lots more power to the state. To think that the people behind this drew votes away from Al Gore ....

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Thursday, December 25, 2008

Legislation also creates special interests

One interesting aspect of working to counter the CPSIA is how it is changing the perceptions of people directly affected. Many of the people I know in the apparel and related businesses are left wing; some of them are right. There have been a few instances of trying to tie this fiasco to lib-rals or Bush or even Obama, but there is no getting around the fact that the opposition to this law was miniscule. It passed with only 1 vote in the House and 3 in the Senate against. So it is a bipartisan disaster, and people have for the most part reoriented their attention on Congress (who remain ignorant to the problems and determined to stay that way) and the ignorant elite who pooh-pooh any mention of the downside.

The forces primarily responsible are "children's advocates". [1] What distinguishes Public Citizen or PIRG from other people who are also "children's advocates", usually known as "parents", is that they don't live in the real world. These are people whose jobs are securely upper middle class, many of them are young, unmarried, and childless. They don't have to live on a budget. Also, they have lots of access to Congress.[2]

Now we have this law that is going to put the parents of children out of business. When some of those businesses go under, they will lay off other parents of children. Many parents who like to buy safe toys will find their choices curtailed, leaving them with the option of making toys or buying the mass-produced plastic junk that started this train wreck. The children of those parents don't count; their poverty, or stress, or hunger, or lack of choice is their problem. For their next trick, perhaps David Arkush or other elites at PIRG and PC will note that we would all be so much richer if we would break windows and put glaziers to work.

Incidentally, one child has died of lead poisoning from a toy in the last two years. That's one child too many, but it is impossible to say what the consequences of this law will be. Parents who were running a business from home now have to find work in a bad economy. Some of them will succeed, and put their kids in daycare. What are the long-term negative consequences of that? Others will not succeed and will have other problems. I doubt that unemployment and children's health are compatible. School science programs will be unable to obtain microscopes and telescopes (and goodness knows what else, those are just things of which I am currently aware). What are the long-term costs of that? The delay of the discovery of a cure for some disease? How many illnesses and injuries should we tolerate to avoid one death? Is this a horrible question to ask? I assert that it is not: resources are finite, and mandates of this type lead to tradeoffs. This question should have been asked before the law was passed; the fact that it was not shows a lack of humanity or realism on the part of the special interest groups and Congressmen who took us down this path without asking the right questions of the right people.

The upshot of all of this is that small businesses who were previously unaware of their need to keep one eye on Washington have suddenly become partisans. Instant special interest group. Not because they are in favor of lead and phthalates, but because they need to keep from getting screwed by activist groups who don't care about that which cannot be seen. Mark Riffey nails it in his "Vigilance, Wooden Toys and Evil Realtors"
It's difficult to say when the handmade child products industry realized they were in trouble. The Handmade Toy Alliance appears to have been formed in October or November 2008 -- after the bill became law (their website was registered Nov 23, 2008), but that's just one of the affected industries. Digging around on Google, there's barely any activity on this issue before November.

Overall, it appears that most handmade children's product businesses were not watching Washington.

Normally this sort of thing is done by an industry's national, regional or state trade association, assuming they are being vigilant (noting that vigilant is not the same as blindly partisan). However, many cottage industries haven't organized themselves (or have but not well enough), leaving this work to individual business owners.

No matter what your politics, you cannot afford to assume that Washington and Helena are on your industry's side. You cannot assume that they are aware, much less able to fully consider and understand how the things they write into bills can impact (or destroy) your business.

I suspect you have enough trouble keeping up with all the news and developments in your industry. Try doing it in hundreds of industries. That's the difficult task they're up against.
...
Laws like Do-not-mail make big business the clear winner. They already have market share, a customer list and cash flow to eliminate industry newcomers who have no relationship, no mailing list (and laws preventing use of a purchased list), no way to call or fax, etc.

Watching over policy making bodies for potential impacts they're making on your business is smart business, whether you do it yourself or join a trade organization that does it for you.
Standard political science has this notion that special interest groups arise to engage in political entrepreneurship, or rent-seeking. But the reaction to CPSIA demonstrates that sometimes the reverse is true: special interest groups arise as a result of arbitrary and detrimental government action. In this case, that action arose because of another set of special interest groups who are narrowly focused on things that they don't understand. Actions create reactions.

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[1] Children's advocates: This is patent nonsense, "nonsense on stilts". I am amazed at the information-free content of campaign literature that touts a candidate as "pro-family" or "anti-crime". Newsflash: everyone is for children, everyone is against crime. Those are not distinguishing features. The implication is that one's opponents are anti-children and/or pro-crime. Those are not honest debate tactics.

[2] Many of those advocates are trial lawyers who have a vested interest in creating more complex laws. The bill's original sponsor, Bobby Rush, has a running battle between electric companies and trial lawyers for his vote. Does anyone understand why electric utilities - publicly regulated natural monopolies - need to spend money on Congressmen? And then there's this cheerleader.

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Monday, December 15, 2008

DailyKos: These people vote

The children at DailyKos knock one out of the park ... for the other team.

First, Congress passed this law by an overwhelming margin. Then the president signed it. That's how representative democracy is supposed to work, right? Then, CPSC General Counsel Cheryl Falvey, who gave heavily to Friends of Hillary in the 2006 season, is accused of committing a parting shot for the Bush administration.

Her crime? Well, according to people who only read press releases from Barbara Boxer and Dianne Feinstein, and therefore believe that they were the authors of this bill (strange that they weren't sponsors), Ms. Falvey made an error in not making the phthalate ban in the CPSIA retroactive. It does not seem to matter -- indeed it does not seem to enter their analysis -- that Ms. Falvey previously found that the lead ban does apply retroactively.

And of course you will find nowhere that the really eggregious part of the CPSIA law is the mandated testing and documentation procedures. Not only do these provide a huge windfall for the few testing labs out there, but they are cumbersome, complex, expensive, not yet defined (!), and inflexible. The result is that you may no longer see microscopes or telescopes in school science departments. Oh well, just something else the partisans can blame on the other guy.

Incidentally, this crap will all hit the fan just in time for President Obama to take office. Just one more thing the other partisan children can Blame on Obama!

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Tuesday, December 09, 2008

In which 30 thousand small manufacturers square off against mom, apple pie, and Ralph Nader

Contrary to popular reports, manufacturing is not dead in the United States. Up until the recent troubles (the recession, not the Bush Administration), we were making as much steel and other stuff as ever. I'm too jazzed to go looking up the stats - try the Statistical Abstract.

According to the 2002 Census, there were about 40,000 cut & sew apparel manufacturers in the US. Of those, approximately 68% were small businesses. You are a manufacturer if you make or cause something to be made (i.e. contract it out). That's about 30,000 small manufacturers, small being anything from sole proprietorship (employing yourself) to 19 employees.

In August of 2008, in the wake of many high profile recalls of stuff made in China, Congress passed and President Bush (yes, Bush, not Obama, contrary to some rumors (really!)) signed the Consumer Product Safety Improvement Act (CPSIA). It has some very laudable goals: eliminate phthalates and cut lead to trace levels in all children's goods. Children in this context are anyone 12 and under. This means clothing, toys, electronics, strollers, books, school supplies, school science projects, astroturf (yep), etc. Sounds pretty sweet, huh?

Well, there are some details. You can't just not use lead or phthalates. You can't just point out that you are using undyed organic hemp and wooden toggles. No, you must prove that you are lead- and phthalate-free. How? Well, at $600-2400 per item, you ship it off to a certified testing lab. Plus, it's destructive testing, so kiss 1-12 samples of whatever it is goodbye. Also, you need to make sure that it is a representative lot, so no more repurposing of used clothes. Also, you need to provide this General Compliance Certificate (GCC) to anyone downstream who wants it. At any time. And be sure you can trace it by lot. Also, you may have to put up a bond in case they want to recall your product so that they know you can cover the cost of the recall.

Now, there's something you may not know about apparel manufacture (and you still won't know at the end of this paragraph because I'm simplifying the heck out of it). You start by developing about 20 styles and see what gets bought. Once buyers buy on the strength of the sample, you order the material and start sewing. The CPSIA testing has to be done on the final product (unit testing), not the inputs (component testing). So even though you are using the same organic cotton cloth and 5 different dyes and 3 different buttons, you can't get by with doing 8 tests (the cloth in 5 colors plus tests on each button). Nope, you have to do testing on 20 different styles x 5 different colors = 100 tests. Of which only 5 styles will ultimately go to market. That's a minimum of $60,000 just for the testing, and you haven't even started to sell yet.

By the way, size does not matter in the eyes of this law. Haynes T-shirts? Yes, they have to test. Grandpa's handmade toys that he sells on E-bay? Yep, in fact E-bay and Etsy are already noting that legal compliance is a requirement of their user terms of use. Also, manufacturing location does not matter - whether you make in or contract to China, Los Angeles, or Lancaster County, you have to test.

"But I make handmade dresses from down from angel's wings, blessed by two rabbis, the pope, an imam, and a guru!" Too bad, where's that GCC?

One further thing: On February 10, if you don't have the GCC, you are selling illegally. So that date has been declared National Bankruptcy Day. You can also follow this in the forums and blog posts at fashion-incubator.com.

So, you would think that Congress would realize they made a huge mistake. The successful small businesses in the industry are absolutely in agreement that lead and phthalates are bad things: many of them are moms who got disgusted with the mass-produced junk in Wal-Mart and went into business with a sewing machine, some good ideas, and a determination to to things right, to be the good guys. But no, Congress doesn't even know there's a problem looming. Congress spent 3 hours and 20 minutes debating HR 4040 and whatever the Senate bill was. 3 hours and 20 minutes to debate a 62 page bill. There was one vote cast against it - Brownie points for whoever can guess who it was without look.... ah, hell, it was Ron Paul. Duh.

In fact, Congress is completely clueless about what is coming. In fact, some of them are pissed that the CPSC legal counsel advised that whereas Congress clearly intended the lead standards to go into effect right away (making your inventory worthless), they did not intend that for the phthalate ban. They think they should eat their inventory, which was legal prior to the law's passage, and would probably pass testing afterwards, but on 10 Feb 2009 will not have a GCC. And leading the way for them is Saint Nader's PIRG. NRDC is chiming in, too. They have been planting stories in newspapers, using their annual review of toys to lead parents into thinking that most if not all toys are simply die-cast lead with a sheen of phthalate gloss. Those stories tell you only that phthalates may be on the shelves for years to come. They don't tell you anything about the testing, about the certificates, about the cost, about the effect on small businesses and one-man or one-woman shops. They might as well also point out that dihydrogen monoxide is still legal for all the rigor and truthiness they are applying to this story.

Incidentally, you might want to stock up on interesting children's clothing. This time next year, it will all be the same style and the same color.

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Tuesday, December 02, 2008

Thoughts on Dorfman (2 of 2)

Continued from previous post ...

4. World economy as zero-sum game

A recurring theme in the book is a brilliant insight. Dorfman repeatedly points out that wealthy characters -- Scrooge McDuck, Bruno in The Lone Ranger's Horse Valley, the Lone Ranger himself -- obtain their wealth through one of two methods. Either the source is mysterious, obscured, shrouded, or they work the land directly. In the first case, we never see factories, laborers, capital, etc., so we are never curious about how they treat their employees or came to dominate their industry. In the second, they literally extract money from the land with their own blood, sweat, and tears, preferably by the happy accident of running a prosperous silver or gold mine. This is an unimpeachable source of wealth since it is literally the mining of money. Thus, the reader is never burdened with any doubts about their moral fiber. It thus allows the wealth to be used as a plot device without getting into any sticky questions of morality.

That said, Dorfman does seem to go too far with his regard for the source of wealth. In one passage, he implies that America's wealth and the poverty in other nations are directly related:
...the development of the United States helped to create the disdevelopment of so many other parts of the world...
This is standard zero-sum theory, the idea that there is only so much wealth in the world and that if some have more, it must be because they took it from someone else. It is the flipside of the very idea against which Dorfman is struggling, the idea that all wealth is earned through superior moral qualities (hard work, frugality, ... the Protestant Ethic [1]).

It is not even necessary to enter into a long argument that the world is not a zero sum game. All I need do is link to this (pay attention to the comparison of the US and Chile at around 6:00) and ask how it can be reconciled with the Zero-Sum Theorem.[2]

5. The confusion over capitalism, industrialism, planning, monopoly, and the State

I divide this objection into three parts: one, the implication of comparative analysis, two, Dorfman's uncritical acceptance of Marxist (perhaps vulgar Marxist) agitprop, and three, Dorfman's refusal to use his analytical methods on his own preferred myths.

5a. Over and over again, we come to phrases such as "products of capitalism" or references to industrialism. At times, they seem interchangeable as Dorfman always uses them pejoratively but never defines what he means by the term (though at least once he seems to distinguish between them when he says, "... capitalism (or is it industrialism?)"). They are, in other words, unspoken assumptions, the very type of thing against which his analytical machinery is directed.

The most offensive thing about these phrases is not the lack of definition: we can (must) guess at that from the context. The context, though, is exactly what his prose intends to evoke. If you say, "A is a product of capitalism", there is an unwritten implication that it is not a product of not-capitalism, or that not-A is not a product of capitalism, and that not-A is a product of not-capitalism. In other words, you are implying a comparative analysis.


Effect A
Effect Not-A
Cause C
Y
N
Cause not-C
N
Y

If you said, for example, "Humans in capitalist societies must eat food to survive," that would be less than devoid of useful meaning because humans in all societies must eat food to survive. The qualifying phrase "... in [X] societies ... " adds no useful meaning in this context since the statement, "Humans in socialist societies must eat food to survive" is equally valid. When the qualifier adds no meaning, it can only be there as a mistake or to be intentionally misleading. I don't believe he would make a mistake like this repeatedly throughout the book. Especially since his implied expertise is in analyzing the implication of context.

One possible exculpatory interpretation could be that Dorfman is making statements about capitalism which we also know to be true about other, non-capitalist societies in order to show that those societies are also capitalist. For example, he might say, "Capitalism is hierarchical" so that when we think about other hierarchical societies -- chimpanzees, Sparta, the USSR, North Korea, China, Cuba -- we might realize that those are therefore capitalist societies. I don't think he is going there.

So I am left with believing that he believes those things are not true of non-capitalist societies.[3] When he says something like, "Producing heroes is a function of popular literature in capitalism," the implication is that popular literature in socialist countries does not feature hero production as a function. We know that this is not true; even a recent NPR piece acknowledged the reality in China:
The only kind of literature that made it through the government censors -- even long after Mao was dead -- was dry and boring. It had to have a message about the improvement of communist society.
So if we know that both capitalist and socialist literature were agitprop in support of the status quo, what could be Dorfman's purpose for making such statements of implied contrast? Is it to suggest that existing socialism does not produce hierarchy or maximum leaders (at least in theory, right comrade Party Secretary?), heroes (like the New Soviet Man), pollution (Aral Sea, The Black Triangle of East Germany, Poland, and Czechloslavakia), icons (fill in the blanks: hammer and ______ ? The hammer is symbolic of what human endeavor? _____ [4]). Socialism produces only free-thinking people, which sometimes means you have to shut down the infidel presses, radio stations, and TV stations to prevent their minds from being clouded.

Let's take another angle: By saying that "capitalism produces A", he is also implying that capitalism does not produce not-A. In a country in which I can pick up copies of Das Kapital, Mutualism: A Factor of Evolution, The Anarchist Cookbook, What is Property, and other clearly anti-capitalist books, the other possible implication/interpretation of Dorfman's assertions is cut off. Even Schumpeter based his defense of Marx' conclusions on the realization that capitalism tends to tolerate, even support and defer to, the socialist academics who advocate the destruction of capitalism -- in substance doing one better than Lenin's claim that they would sell the rope by which to hang them by subsidizing the socialist rope-makers.

What, then, is the purpose of such statements? Such unstated assumptions either speak to the converted, or they attempt to trick the uncommitted and uninformed into believing something without telling them the whole story. This is the epitome of the type of propaganda which Dorfman is analyzing; it is argument by intimidation, of the form "As everyone knows ..." in which those first three words are left to the readers' imaginations.

5b. Next we have some confusion over capitalism, planning, and monopoly. In one section, as Dorfman is pointing out that heroes such as Superman, The Lone Ranger, and others sprung into existence during the Depression, he falls into a line of thinking that can be attributed to high school civics classes.
The market's automatic mechanisms did not serve to avoid disaster. The State appears as the only one that can, and should, intervene.
This is The Roosevelt Myth, popular among the Right and the Left for different reasons.

According to the Right, the United States was a free country until FDR took over and rammed socialism down our throats. In the period prior to FDR, self-made men like Carnegie, Rockefeller, and Vanderbilt created wealth with their bare hands and genius. According to the Left, the country was governed by laissez faire and monopoly, but then capitalism collapsed. FDR saved us by taking over and fixing what was wrong with capitalism.

It is surprising to find Dorfman citing one of these two infantilized visions of history. But then, he has to, because it squares with Marxist theory. My admittedly kindey-garden version of that is: in going from atomistic competition to capitalism, the capitalists incur more and more debt to buy up their competitors at the same time they are cutting costs to gain market share until at some point the market is saturated, they are losing money on every product sold, and they collapse under the weight of the debt incurred in building the empire. At that point, the State steps in and takes over, a step made easier by the fact that the sole remaining company accounts for the entire industry.

That is not what happened or was even likely to happen. The basic problem is in the way a monopoly or oligopoly works. In order to obtain extraordinary profits (rents), you have to restrict output before raising prices. When a monopolist tries this in a free market, competitors undercut and take market share. It is a self-defeating strategy. As we can see from Chandler and Kolko, the actual history consisted first of a wave of attempts to cooperate in cartels like the Western Freight Association, which collapsed because of price shading by uncooperative members. There was then a period of consolidation which peaked around 1900, but which failed because entry was not blocked. As this strategy began to fail, they turned to the federal government as a cartelizing agent.

By the time we got through World War I, the country was a far cry from laissez faire (one could argue that the Revolution was scarcely over before Hamilton began to put in place the foundation for the coming corporatism). Not only had the large industries been built on the services provided by railroads and telecommunications, which in turn relied on state support to overcome problems such as obtaining rights of way, but now they had a federal infrastructure that slowed down the appearance of competitors. The railroads got the Interstate Commerce Act (1877), Elkins Act (1903), Hepburn Act (1906), Mann-Elkins Act (1910), and finally the Transportation Act of 1920. These put the ICC in the position of establishing minimum rates and effectively slowing the competition from the trucking industry. Meat packers got the Food and Drug Act and Meat Inspection Act (1906) to help limit entry to their industry. Bankers got the Federal Reserve Act of 1913, an act which guaranteed federal bailouts (to member banks). Everyone got the Clayton Antitrust Act and the FTC, an agency with the power to stop new entrants from taking market share with "predatory pricing". Then we got the War Industries Board during the administration of Progressive president Woodrow Wilson. The actual policies of FDR drew heavily on the experiences of the WIB and on the ideas of Gerard Swope, President of General Electric.

Which makes Dorfman's comments about planning all the more bizarre. He says,
What the public and the magazine will not do is admit that such phenomena [pollution] accompany capitalism (or is it just industrial society?) like endemic diseases: the need to maximize profits, lack of planning, unbridled competition, and a general lack of restrictions, controls, or specific responsibilities.
If one takes his Marx seriously, one should understand the state-corporate nexus which lies at the heart of historical capitalism (state-capitalism) as "planning". A monopolist goes to great pains to plan. Even Howard Zinn understands that monopolization when he says,
[Teddy Roosevelt] prosecuted the Morgan railroad monopoly in the Northern Securities Case, considering it an antitrust victory, but it hardly changed anything, and, although the Sherman Act provided for criminal penalties, there was no prosecution of the men who had planned the monopoly [emphasis added] - Morgan, Harriman [sic], Hill.[5]
And what could be more exemplary of capitalist planning than the drafting of the legislative acts above -- many of which were drafted not by wild-eyed Progressive reformers, but by lawyers working for J. P. Morgan! --, lobbying in their favor, and then cooperating with and even running the War Industries Board? Capitalism lacks planning? Is Dorfman mad? State-capitalism is planning!

5.c But let us grant for a moment his apparent belief that planning is good [6]. Why then, does he seem to denigrate the Lone Ranger in his role as the State? Who, in Dorfman's preferred world, does the planning if not the State?

It is telling in the opening chapter to find that Dorfman was working for the Allende government as a cultural "advisor". Essentially, he was working for the Ministry of Culture (dare we call it MiniCult?) In that capacity, he expresses hope that they were telling the truth (Minitruth?) and not spreading a different version of propaganda.
Allende's victory gave this enterprise [of the Chilean people and intellectuals gaining a means of producing their own ideas] a real grounding and a vaster dimension ... I was personally involved in producing new comic books, in inexpensive paperback literature sold on newsstands, a series of TV programs, a magazine for adolescents.

The problems the people involved in this undertaking had to solve were gigantic. How to subtly use and change publications, programs, and formats which already had a following; how to create new messages without making them into propaganda; ....
A page or so later, we find that at times he was out until "two or three in the morning from a rayado mural (painting the town's walls with artistic and political slogans)." I don't see how this could not be viewed in Orwellian terms. A member of MiniCult spending the night painting political slogans by night and producing propaganda-free television by day?

The obvious "out" from the problem of being against the State but for planning is to claim that socialist planning is done "democratically". This is not defined anywhere in the book, though it should be pointed out in his defense that the book is not about this. However, in line with Dorfman's own analysis, this is another one of those unspecified assumptions: that "democratically controlled" has a real meaning that is knowable and known.

While I personally would like to see a society in which more worker-owned cooperatives competed head-to-head with privately owned and operated concerns, I have no illusions that such organizations are automatically and everywhere superior. I have worked for a few people in my life who were energetic geniuses; the idea that the organizations that they built should suddenly be subjected to control by the workers, in which the janitor or the receptionist had an equal influence on policies as the company founder, is laugh-out-loud funny. I know of union officers who disagree with their own members and find their voting to be against their own long-term interests. Hierarchy and bare majority democracy to me are mirror opposites, yin and yang, in which the strength of each reflects the weakness of the other.

If the Ranger does what the people want him to do, regardless of whether they voted for him or not, isn't that what the socialist wants? They call it "the people's will" or "the public good". If he didn't do what they wanted, he wouldn't be a hero.

Dorfman demonstrates nothing like nuance on this topic, though. Capitalism promotes hyperindividualism and anomie, socialism doesn't. Capitalists are encouraged to defeat their comrades, socialists aren't. It isn't apparent, then, how socialists would tolerate dissent that might lead to contentious debate and defeat in democratic decisions. In practice, socialism has not tolerated such dissent. We need only look at how Lenin handled the Mensheviks, how Stalin, Mao, and Castro tolerated rivals, how Chavez tolerates opposition radio and TV. Indeed, in a period in which the US was arguably more free market and less state-capitalist, de Toqueville noted Americans' tendency to associate. As I have noted elsewhere, social interaction continues today in market environments. But people living under socialism have had to be wary of what they say and with whom they associate because the State's spies are everywhere: this has been a theme of dystopian novels (1984, Brave New World, This Blessed Day, Fahrenheit 451) as well as the experience of the inhabitants of East Germany.

As the joke goes, three men die a day earlier than planned, so St. Peter grants them a wish to spend 24 hours doing whatever they wish to do: the Englishmen wishes for a walk in the country with his favorite hound, the Frenchmen wishes to spend the day with his mistress, and the Russian wishes to watch his neighbor's barn burn. Truly, in a society in which any dissenting thought potentially puts you in conflict with your neighbor, neighbors probably keep to themselves.

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So long as I can keep in context the fact that Dorfman does not appear to have turned his analytical engine on himself or his preferred mythologies, and to keep in mind that when he says "capitalism" or "industrialism", he is usually but not always right if you substitute "state-capitalism", this was a remarkable book. I could have only spent this much time criticizing isolated components of it if I found the main course to be so good.

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I'm still a little baffled by the rant against the tendency of Reader's Digest to show great people being just like everyone else in the midst of doing great things. He is at one time ridiculing this and referring to it as a democratizing effect. What does he mean? Does he want us to always keep great people on a pedestal? That's hardly in line with standard thinking of his intellectual class. Ostensibly his purpose is to knock down Reader's Digest for convincing its readers that they know something about the world without actually having learned anything, for believing that they are the same as Einstein without having accomplished the same things. Sure, okay, a magazine that feeds its readers narcissism is bad, but is it better or worse than an ideology based on that premise? So, which ideology is it that says that Einstein and the janitor should each get an equal vote on how Princeton is run?

---------------------------------

[1] Dorfman makes reference at one point to Weber's "The Protestant Work Ethic and the Spirit of Capitalism" without appearing to be aware that the theory is not without its shortcomings, i.e. finding that many of the same outcomes may be found in Catholic and Asian societies. But let us put nothing in the way of a good polemic against Anything That Is Not Socialism.

[2] One possible way out of this is to cast doubt on what is being measured and how it is measured: it is possible that the choice of the measure of wealth is leaving out critical elements that fail to show the exploitation. But then, one has to wonder what measures can be used to revive the Zero Sum Theorem.

[3] An alternative theory is that he personally may believe those things, but hopes that the readers aren't aware of them. I don't think that's true either.

[4] Sickle, industry/industrialism

[5] This is actually an error on Zinn's part. For one thing, Harriman was working against the Hill interests, a fact which prompted them to attempt to shelter their holdings in the first place. For another, this is an awfully narrow definition of monopoly: the Northern Securities railroads were bounded to the North by the Canadian Pacific and to the South by Harriman's Union Pacific, both of which were heavily subsidized railroads (the Great Northern was the only railroad arguably not subsidized).

[6] By "planning", I suspect that he means "central planning". The planning done by individuals doesn't count as planning for a socialist because it hasn't been cleared with everyone else. How my neighbor's goals can be objectively compared to my own by people who don't know either of us, and who have their own agendas as well, has never been explained to me.

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Sunday, November 09, 2008

Financial meltdown cause and effect

I was in Europe during the (now not so) recent events and got a different perspective. But I didn't have the time or access to read up on it at that time, so my initial thoughts were this:

1) It's only a matter of time until ... yep, in the very first article I finally sat down to read, the words "laissez faire" were used to assign blame for the problem. It was from a writer in the US. It held little resonance there since EU institutions were having a problem at the same time, and they are certainly not afflicted with the LF disease. Here in the US, I cannot get any of the people arguing the "laissez faire" angle to explain the simultaneous meltdown in enlightened, regulated, social-democratic Europe.

2) As I recall, we had a series of up and down market "events" over the last 10 years. Some of these included a tech stock bubble, the collapse of LTCM, the Asian crisis, some concern over the potential Y2K problem, and a downturn in 2001. Alan Greenspan admitted to pumping cheap money into the economy in reaction to these events, creating or at least exacerbating a bubble or two.

3) In an up market, people can afford to make mistakes because there are so many other factors erasing the effect of those mistakes. Another way to look at it is that bubbles are like a Ponzi scheme in which the early participants are bailed out by subsequent participants. Yet another way to view it is that the entrance of new buyers is a public good since their actions prop up the price of everyone else's investment (in some circles, public goods are always a good thing and must be subsidized). A sufficiently advanced bubble is easily popped if new entrants fail to materialize or participants start backing out. I have yet to see much written on the triggering mechanism.

4) An obvious but unmentioned triggering mechanism, which is surprising because it was all the rage a year or so ago, was the effect of soaring energy and food costs. Fewer people were willing to buy homes and some probably had to back out of loans because they could not also afford to keep their Suburban fueled up or their refrigerator filled with HFCS. I suspect this has gone unmentioned because those costs have been going down just at the moment the financial "crisis" came into full swing.

My take on this fiasco, before spending much time looking into it, was that the energy and food costs pricked a real estate bubble. The real estate bubble was caused (or at least aided and abetted) by the Fed's policies by Greenspan's own admission. Fuel prices were high because of both a lack of additional fuel coming onto the market and a greater demand in the emerging Asian markets. Food prices were rising in part because of the fuel prices, and in part because of distorting farm policies (including ethanol subsidies, which is another fuel-related angle). While the fuel problem is arguably related to real market forces [1], energy production, distribution, and pricing is about as far from "laissez faire" as one can get. The other factors -- food, real estate, and Fed policies -- are not even arguably laissez faire.

Once I got to looking into it, though, I can't help but note the bizarre mix of policy and blunder on the part of both state and state-capitalists at the heart of the so-called crisis.

First, I got a link to a video clip that blamed everything on Democrats who lobbied for increases in lending to the poor via the Community Reinvestment Act. While interesting, it failed on several levels. At one point, it implies that Democrats made a major change in 1995. I'm pretty sure Republicans were running Congress at that time. Also, it doesn't explain convincingly why the crisis didn't show up then instead of now.

Then, I came across a chart that showed a rapid expansion of subprime lending in the 2003 period. Why then?

Then, I started looking into the Credit Default Swaps, the key and/or only factor in the opinion of the "laissez faire caused this" crowd. Interesting, but hardly an example of laissez faire. More like, unregulated side market in a broadly regulated, subsidized, and entry-controlled industry.

Over and over, though, I kept coming across references to Fannie Mae and Freddie Mac. First, Paul Krugman's assertion that they didn't really have a problem and were in fact an example of a well-regulated system. But then there were the rebuttals that argued several things that seem important, but have not been well-covered. The first was that, in the era of Sarbanes-Oxley [2], Fannie Mae and Freddie Mac were exempted from such reporting. In fact, in spite of the fact that several hundred government overseers have nothing to do but look after these two Government Sponsored Enterprises, they made some huge accounting mistakes. The second was a paper, cited as a counterargument to Palin's claim that these two GSE's had gotten to be a huge risk to taxpayers, that noted that the GSE managers played a double game of telling Congress that they weren't claiming to be government-backed while telling investors that they were. The third was another paper that argues that because of their accounting errors and their desire to curry favor with Congress and an Administration that placed home ownership as a policy cornerstone, the GSEs basically went overboard in participating in the subprime market.

That last point specifically contradicts Krugman's claims of the triumph of regulation. The authors of the paper (Wallison and Calomiris) argue that Fannie Mae and Freddie Mac fooled lots of people besides Dr. Krugman, in part because they adjusted their definition of subprime. As Krugman argues it, subprime is by definition the class of people to whom the GSEs will not lend. That would be correct if they were honest, but in fact they had shifted the goal posts without being explicit about it. So they actually were helping to fuel the subprime market.

It has to be recognized that anyone buying up any mortgages is helping to lower the costs of even the most expensive (risky, subprime) mortgage. Let's say that a bank lends 90% of its money to consumers with good credit and 10% to those with bad. Then someone comes along and buys up some of those good mortgages. Now the bank has money to loan more to both the good risks and the bad. To the extent that they think they can still make money with that 90/10 ratio, they will lend the money to both good and bad risks. It's a damn subsidy intended to promote lending, and it works. All that is accomplished by CRA and shifts in subprime lending is to move that ratio; that's the point. Why are people now arguing that those effects are not real, or that they are not important? If they are not real or not important, then what is the point of the legislation that promotes those policies?

In the end, the finger-pointing going on between left and right wing is pure hypocrisy on both sides. Yes, changes were made in the laws in the 1990s. Some or most of these were passed by a Republican Congress and a Democratic president. Yes, some changes were made in the laws in the 2000s, all Republican. However, it has been noted that the Bush Administration drastically increased funding for regulation. They also sought increases in regulatory scope, but were not successful in getting it past a Republican Congress. At the same time, Democrats have been serving on the boards of Fannie Mae and Freddie Mac, have been benefiting from lobbying and campaign contributions, and have not done anything meaningful in the 18 months in which they have controlled Congress.

Finally, the bailout should be seen as a fleecing of taxpayers to prop up the assets and income of large bankers, fund managers, lobbyists, GSEs, and so on. It is the essence of state capitalism, embraced enthusiastically by both Democrats and Republicans. European wags are hailing this as the end of American capitalism -- ha! It is a null change in course, a culmination of all they have worked toward, the grandchild of the Federal Reserve Act, business as usual, another day at the office. While people fear the socialism that Obama might bring, they ignore the socialism that Bush confirmed.

The most vexing thing to me is the use of free market rhetoric by Republicans and the right wing. They use it while enthusiastically undermining it. They call a realignment of regulations, "deregulation". [3] Then, when the new regulations have "unexpected" consequences, the left, which frequently supports these "deregulation" schemes (natural gas, trucking, railroads, and S&Ls were all "deregulated" by a Democratic Congress and Jimmy Carter while the electricity industry in California was "deregulated" by their heavily Democratic state legislature) uses the event to decry "free markets", "deregulation", "laissez faire" policies, and "market fundamentalism". Shame on both of them.


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[1] And also to policy-driven emergence of Asian economies and export-driven state capitalism. China didn't get into the Wal-mart supplier business by accident.

[2] S-O should be judged a complete failure at this point since it did not prevent the single thing that it was designed to prevent -- surprise abnormalities in corporate reports and balance sheets ala Enron.

[3] I have always thought it interesting that Left wing polemicists are quick to point out all of the government supports, but they quickly forget those supports when discussing deregulation.

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Saturday, February 09, 2008

Nth best, Posner-inspired

There are people out there who believe in this simple model:










This is a decision tree that says there are two choices: transactions with no problems -- no institutional failures, no externalities, a perfect market transaction -- and those that must be regulated. Of course, any regulation can be justified after the fact. If nothing else sticks, you can always invoke asymmetric or imperfect information, the last refuges of scoundrels.

But Posner makes an interesting point in Economic Analysis of Law that is rarely acknowledged by fans of regulation. He says,
Monopoly, pollution, fraud, mistake, mismanagement, and other unhappy by-products of the market are conventionally viewed as failures of the market's self-regulatory mechanisms and therefore as appropriate occasions for public regulation. This way of looking at the matter is misleading. The failure is ordinarily a failure of the market and of the rules of the market prescribed by the common law [emphasis added]. Pollution, for example, would not be considered a serious problem if the common law remedies, such as nuisance and trespass, were efficient methods of minimizing the costs of pollution. The choice is rarely between a free market and public regulation. It is between two methods of public control -- the common law system of privately enforced rights and the administrative system of direct public control -- and should depend upon a weighting of their strengths and weaknesses in particular contexts.
We can diagram this as:










But wait: it would be rare that a transaction would have a single institutional (market) failure, would it not? In fact, many if not most transactions are subject to multiple failures. The problem for the knee-jerk regulator is that they don't all work in the same direction. As I argued here, they may frequently cancel:
The state ownership of oil and the corresponding ease with which OPEC should be able to cartelize should raise the price, while externalities imply an artificially low price - which dominates? We know that the cost of our interventions in oil-producing regions is not accounted for in the price, but the risk premium brought about by the unstable regimes and regions that happen to possess the oil and our interventions in them is. Now add Hotelling into the calculus, and figure that the cartel members are going to cheat to drive prices downward, while federal taxes and regulations (not all of which are rational or efficient) raise the price.
So our decision tree now has four branches: no failure, self-canceling failures, common law, and regulation.









We can also add in the self-enforcing means open to private actors as suggested by Second Best Economist Dani Rodrik: repeated interaction, reputation, and collective punishment.













And since we're differentiating between types of self-enforcing agreements, why not differentiate between regulations? There are at least four; regulating inputs (as in the original Clean Air Act which mandated scrubbers), regulating outputs (as in mandating the use of MTBE in boutique fuels), taxation (alcohol) or user fees, and cap & trade (exemplified by sulfur dioxide markets created by the 1990 Clean Air Act).














This now looks like a rich spectrum of responses, many of which are open to private actors and therefore anarchists. I think it should be apparent now why I believe that regulations -- especially of the inputs or outputs -- are frequently a simplistic, unimaginative response to the particular class of institutional failures, real or perceived, known as market failures. True, not all are appropriate in a given situation, but it is rare to find a politician or state enthusiast who even recognizes that there are other options.

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Friday, February 08, 2008

Promise of American Life (again)

In The Promise of American Life (part I here), Croly seems to accept the moral basis for socialism, but soundly rejects the Marxist formulas. Maybe this is what is meant by American exceptionalism?

In Socialism: Utopian and Scientific, Engels makes demands for gradual state takeover of private property. "In any case, with trusts or without, the official representative of capitalist society -- the state -- will ultimately have to undertake the direction of production. This necessity for conversion into State property is felt first in the great institutions for intercourse and communication -- the post office, the telegraphs, the railways." This nationalization was expected to lead to the whithering of the state:

Whilst the capitalist mode of production more and more completely transforms the great majority of the population into proletarians, it creates the power which, under penalty of its own destruction, is forced to accomplish this revolution. Whilst it forces on more and more of the transformation of the vast means of production, already socialized, into State property, it shows itself the way to accomplishing this revolution. The proletariat seizes political power and turns the means of production into State property.


But, in doing this, it abolishes itself as proletariat, abolishes all class distinction and class antagonisms, abolishes also the State as State. [1]
Croly would have nothing to do with that; in his estimation, the men (Hill, Harriman, Morgan) who built the great industrial concerns contributed to the national efficiency. Rather than banishing them, Croly wanted to harness them (and maybe control the amount of money they made [2]). His methods of regulating therefore consist of removing impediments to them, including the Sherman Act, and replacing it with a system of commissions who would review their decisions and make them more transparent. To what end? National efficiency, of course (the man had an efficiency fetish). But Croly was unsatisfied with the idea of a commission, since efficiency would normally require responsibility to be placed with one man; but by favoring national commissions, at least it gives him a way to preserve private property even as he expands the scope of the national government. Sounds like ... ?
The constructive idea behind a policy of the recognition of semi-monopolistic corporations is of course the idea that they can be converted into economic agents which will make unequivocally for the national economic interest; and it is natural that in the beginning legislators should propose to accomplish this result by rigid and comprehensive official supervision. But such supervision, while it would eradicate many actual and possible abuses, would be just as likely to damage the efficiency which has been no less characteristic of these corporate operations. The only reason for recognizing the large corporations as desirable economic institutions is just their supposed economic efficiency; and if the means taken to regulate them impair that efficiency, the government is merely adopting in a roundabout way a policy of destruction. Now, hitherto, their efficiency has been partly the product of the unusual freedom they have enjoyed. Unquestionably they cannot continue to enjoy any similar freedom hereafter; but in restricting it, care should be taken not to destroy with the freedom the essential condition of the efficiency. The essential condition of efficiency is always concentration of responsibility; and the decisive objection to government by commission as an efficient solution of the corporation problem is the implied substitution of a system of divided for a system of concentrated responsibility.

This objection will seem fanciful and far fetched to the enthusiastic advocates of reform by commission. They like to believe that under a system of administrative regulation abuses can be extirpated without any diminution of the advantages hitherto enjoyed under private management; but if such proves to be the case, American regulative commissions will establish a wholly new record of official good management. Such commissions, responsible as they are to an insistent and uninformed public opinion and possessed as they inevitably become of the peculiar official point of view, inevitably drift or are driven to incessant vexatious and finally harmful interference. The efficient conduct of any complicated business, be it manufacturing, transportation, or political, always involves the constant sacrifice of an occasional or a local interest for the benefit of the economic operation of the whole organization. But it is just such sacrifices of local and occasional to a comprehensive interest which official commissions are not allowed by public opinion to approve. Under their control, rates will be made chiefly for the benefit of clamorous local interests, and little by little the economic organization of the country, so far as affected by the action of commission government, would become the increasing rigid victim of routine management. The flexibility and enterprise characteristic of our existing national economic organization would slowly disappear, and American industrial leaders would lose the initiative and energy which has contributed so much to the efficiency of the national economic system. Such a result would of course only take place gradually, but it would none the less be the eventual result of any complete adoption of such a method of supervision. The friends of commission government who expect to discipline the big corporations severely without injuring their efficiency are merely the victims of an error as old as the human will. They "want it both ways." They want to eat their cake and to have it. They want to obtain from a system of minute official regulation and divided responsibility the same economic results as have been obtained from a system of almost complete freedom and absolutely concentrated responsibility.
This section of the book reminded me of those sections of Gabriel Kolko's Triumph of Conservatism, in which he traces Teddy Roosevelt's preference for regulating behavior by the Good Ol' Boy method. TR, the renowned trust-buster, didn't really like to bust trusts, but preferred to try to persuade the less civilized among them (read: non-Harvard men) to change their ways. Those who didn't go along, such as J. P. Morgan and (IIRC) John D. Rockfeller, felt his wrath and it was upon their necks that Roosevelt's mythological Trust-Buster reputation was built. Perhaps it was no coincidence that Croly expressed admiration for Roosevelt (one chapter features a comparison between Roosevelt, William Jennings Bryan, and William Hearst as reformers, with TR as the hero), and later, after the publication of TPoAL, Roosevelt based his New Nationalism upon some of Croly's ideas.

And it was much the same when discussing unions. First, the Sherman Act should be repealed, and second, unions should be recognized with a deal that brings their activities in line with the national efficiency. The highest accomplishment to which a man can aspire in the Crolyist world was to place his talents at the service of the nation. You know, for the sake of efficiency.
The alternative [preferred] policy would consist in a combination of conciliation and aggressive warfare. The spokesman of a constructive national policy in respect to the organization of labor would address the unions in some such words as these: "Yes. You are perfectly right in demanding recognition, and in demanding that none but union labor be employed in industrial work. That demand will be granted but only on definite terms. You should not expect an employer to recognize a union which establishes conditions and rules of labor inimical to a desirable measure of individual economic distinction and independence Your recognition that is must depend upon conformity to another set of conditions imposed in the interest of efficiency and individual economic independence. In this respect you will be treated precisely as large corporations are treated. The state will recognize the kind of union which in contributing to the interest of its members contributes also to the general economic interest. On the other hand it will not only refuse to recognize a union whose rules and methods are inimical to the public economic interest, but it will aggressively and relentlessly fight such unions. Employment will be denied to laborers who belong to unions of that character. In trades where such unions are dominant, counter-unions will be organized and the members of these counter unions alone will have any chance of obtaining work In this way the organization of labor like the organization of capital may gradually be fitted into a nationalized economic system.

...

[T]he union should have the right to demand a minimum wage and a minimum working day. This minimum would vary of course in different trades in different branches of the same trade and in different parts of the country and it might vary also at different industrial seasons. It would be reached by collective bargaining between the organizations of the employer and those of the employee. The unions would be expected to make the best terms that they could and under the circumstances they ought to be able to make terms as good as trade conditions would allow. These agreements would be absolute within the limits contained in the bond. The employer should not have to keep on his pay roll any man who in his opinion was not worth the money, but if any man was employed he could not be obliged to work for less than for a certain sum. On the other hand, in return for such a privileged position, the unions would have to abandon a number of rules upon which they now insist. Collective bargaining should establish the minimum amount of work and pay, but the maximum of work and pay should be left to individual arrangement. An employer should be able give a peculiarly able or energetic laborer as much more than the minimum wage as in his opinion the man was worth and men might be permitted to work over time provided they were paid for the over time one and one half or two times as much as they were paid for an ordinary working hour. The agreement between the employers and the union should also provide for the terms upon which men would be admitted into the union. The employer, if he employed only union men should have a right to demand that the supply of labor should not be artificially restricted, and that he could depend upon procuring as much labor as the growth of his business might require. Finally, in all skilled trades there should obviously be some connection between the unions and the trade schools, and it might be in this respect that the union would enter into closest relations with the state. The state would have a manifest interest in making the instruction in these schools of the very best and in furnishing it free to as many apprentices as the trade agreement permitted.
Translation: The state must control industry, preferably monopolies, and then control the labor that works in those monopolies. If the unions won't go along, we'll start state unions (where have we seen this?). And the state won't countenance any shenanigans from you workers: you can bargain for a minimum wage and then shut up. This isn't for you, it's for the nation.

I am reminded of Chris Nyland's article, "Taylorism and the Mutual Gains Strategy" (Industrial Relations, Vol. 37, No. 4, Oct 1998), in which he describes Taylor's attempts to reconcile with various labor unions and convince them that efficiency was something they ought to embrace. The alliance between the Taylorists and unionists is attributed to (among others) Louis Brandeis: close associate of Croly, the coiner of the term "scientific management", and the leading spark for the Efficiency Movement. One of those unionists, Sidney Hillman of the Amalgamated Clothing Workers Union, entered into collaboration with members of the Wisconsin school of industrial relations [3], but disagreed with them over the scope of union-management negotiations. The Wisconsinists believed that the scope should be limited to wages and hours, but the unionists believed the scope should include more, including investment, plant layout, and promotions.

These dalliances between labor and the Taylorists continued right through the 1920s and the Depression, during which the Wagner Act was passed. In 1940, the creation of a bargaining agreement between GM and the UAW was influenced by the back and forth between unionists, Taylorists, and the Wisconsin school. According to Nyland,
In 1940, George Taylor [not Frederick Winslow] was appointed umpire of the newly signed UAW-GM contract. At the time, this development must have appeared a great opportunity to extend the mutual-gains model. Optimism that the model would be extended was common not ony within SAM, the AFL, and the CIO but also in wider industrial relations circles. For example, Sumner Slichter in 1941 devoted some two hundred pages of Union Policies and Industrial management to an examination of the history of union-management cooperative schemes for increasing production, quality improvement, and cost reduction. Slichter was aware that such schemes tended to have a high mortality rate and had been embraced by only a small number of employers. [...]

The hope that unionization of the automobile industry would assist the growth of the mutual gains model was, of course, not realized. As in the 1920s, it tended to be small, unionized enterprises experiencing difficult times that took up the mutual-gains option. As Leichtenstein [...] notes, while GM took much from the bargaining model that George Taylor had helped develop in the garment industry, the company was very selective as to the parts of the garment program it adopted. As a consequence, the company institutionalized a form of union-management closer to the model advocated by the Wisconsin school than that favored by [the Society for the Advancement of Management, or SAM, the name the Taylorist Society had chosen when it absorbed the Society of Industrial Engineers], and it was this model that was subsequently widely emulated through industry. Leichtenstein [...] has explained why this was so:
General Motors had a very different conception of how the grievance system and umpire machinery might function. the company, which had closely observed the way in which [George] Taylor handled disputes in the hosiery industry, wanted to avoid the freewheeling, all-inclusive style pioneered there. The largest corporation in the world had no need for the kind of economic tutelage so often meted out by those industrial relations "fixers" who had pioneered in the economically chaotic clothing trade.
In short, GM rejected "joint management" and instead institutionalized that amalgam of work practices, formalized grievance procedures, limited seniority, and constrained bargaining that subsequently became known as "New Deal Industrial Relations."
So Croly and his friend Brandeis got their way after all, at least with regard to unions. The Wagner Act, far from being the labor success it is frequently claimed, was a means of restricting labor's control over their work environment. Those aspects of work that today we call Taylorist should have been called the GM-Wisconsin model. As I argued in this article, it was GM's size and an accident of history rather than any special power of efficient management that led the world to adopt their accounting system, and so it is with their labor control system. In both cases, the adoption has been assisted by the federal government: in the first case by its adoption as the GAAP and the SEC, in the second by Wagner and the NLRB.

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[1] I guess I was wrong about the terminology of socialization and nationalization in this post, but the outcome is the same: fascists must have the state, Marxists seek to abolish it.

[2] At that time, they still naively believed that the Constitution had to be amended before you went off and assumed a power like taxing income. We have learned so much since then.

[3] Somewhere, I read that the ILGWU instituted the first Industrial Engineering program, but I don't recall where. I think Kevin Carson would suggest that the "mutual-gains strategy" will be effective right after the workers take ownership of the factory. But then it's a "worker-grains strategy," isn't it?

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Sunday, January 27, 2008

National vs. Social

As if you haven't noticed, I've been giving lots of attention to the Jonah Goldberg thingy. It happens to be an interest of mine.

One of his comments on the interview with Glenn and Helen Reynolds was something like "Nationalizing and socializing mean exactly the same thing: When we talk of socializing health care, we mean nationalizing, and when someone talks of nationalizing the oil industry, they mean socializing it."

Well, yes and no. Goldberg is right when he says the two are the same, but they shouldn't be and they weren't always.

This gets down to what Marx said and meant in theory, and how his theories have been taken up in practice. Marx saw the final stage, the one succeeding capitalism, as being a thoroughly democratic society in which institutions like private property would give way to community property. Thus, factories would be socialized, the opposite of privatized. However, he also saw that the state, the mechanism by which the capital-owning class controls the workers, would also whither away. Thus, socialized industry or socialized health care meant something completely different to him than what we mean by that today.

Today, socialization of an industry means ownership becoming controlled by the state, i.e. nationalization. Marx's successors have adopted his vision for everything except the state and have substituted the state for the community. And in this regard, we find that the state-loving left is the more nationalistic.[1]

Nationalism is frequently conflated with extreme patriotism or jingoism. When using the term to describe a characteristic of fascism, that's a red herring. A fascist's nationalism is not primarily about which state is better, it is about the proper scope of the state. Mussolini's prescription was, "All within the state, nothing outside the state, nothing against the state." And so it is when people speak of those things which are "too important to be left to the market," such as education, energy, health care, transportation, and so on. For each new field of endeavor into which the state enters, the state becomes that much stronger and more important (and the realization of Marx' state-free vision that much farther off). And as I have written in other contexts, no matter which party favors and clamors for the increase in state authority, the other is happy to exploit it for their own ends when they are in power. That is one reason it is a one-way ratchet. At some point, the scope of the state's authority will enter into every realm of personal life: that is what they meant by "totalitarian". For Mussolini, it was an explicit goal, enthusiastically sought; for today's neocons and takes-a-villagers, it is a "necessary evolution," driven by their concerns for physical and economic security, "market failure"[2], and the misfortune of "living in a second best world."

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[1] Yes, they are quick to blame America for the world's ills, but note how easily the left will forgive and forget their own when committing the same atrocities. The Blame America First tactic is merely cover for a Blame Republicans First strategy. World War I and II? Democrats. Viet Nam? Democrats. Only president to use a nuclear weapon? Democrat. President in power for both the first World Trade Center bombing and the initial planning for the second WTC bombing and thus responsible for America's poor image in the world? Democrat.

[2] Check it out: Quasibill catches the neocons explaining -- in terms of market failure -- why the state must pay for the economic security of Big Air under the guise of paying for the physical security of the passengers.

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Saturday, November 24, 2007

Wal-Mart and sustainability

UPDATE: In response to some thoughtful criticism I got from a container shipping industry executive, I edited a portion below. I had said that the state helped break transport unions, but in reality they are still a force in the industry. It would be more accurate that the state forced them to accept change.

I got interested in some of the responses on this post on Environmental Economics. If Wal-Mart had claimed altruistic motives for some of their policies, that would properly be called "greenwashing". However, they weren't. Tim Haab was basically pointing out a truism: Wal-Mart's interest in sustainable measures (including hawking CFLs, incorporating passive solar for lighting and active solar for electricity, and so on) is done for selfish reasons: to make money. Like any post involving Wal-Mart and sustainability, it became a lightning rod for people with definite policy agendas. Given that I am likely to either defend or attack Wal-Mart and sustainability, depending on the context, I have an opinion but no definite laundry list of policies I'd like to see enacted.

You could summarize the many variables and value judgements in truth table format with about 27 variations (3^3) and assign each to an ideology. The variables are Wal-Mart, sustainability, and planning/government, each of which people may label as good, bad, or benign/irrelevant. Wal-Mart good, sustainability irrelevant, government bad is the default position for the vulgar libertarian. Wal-Mart bad, sustainability good, planning good is the default position for the Progressive. W-M bad, sustainability irrelevant, gov't good is the default for the populist/conservative. W-M good, sustainability bad, gov't benign is the evangelical right (she drives an SUV and has 6 kids).

I think my entry in the table would be "Wal-Mart benign, sustainability good, planning/government bad". Wal-Mart doesn't "drive" the system the way both the Progressives and the vulgar libertarians say that it does. Rather, the system created Wal-Mart. Going by Chandler's Visible Hand, people responded 100 years ago to the first department stores (Marshall Field's) and then to the mail-order stores (Sears, Woolworth's) the same way they do to Wal-Mart today: by claiming they would eat away at local businesses. Well, if it wasn't Wal-Mart, it would be someone else.

So I tried to point this out and emphasize the fact that it is state capitalism that creates the unsustainability, of which Wal-Mart is just a delivery boy. Our system looks like a giant vacuum cleaner that hoovers up resources in the developing world and kicks them out back here; Wal-Mart is the least fancy exhaust portal. We the people continue to support policies which produce "efficient" systems for delivering products to us. Those systems are a combination of transportation, energy, and credit subsystems that interact with cultural values to both create the demand and impose costs on the use of alternatives.

For example, we have national energy policies that ensure the profitability of large electrical monopolies who generate from coal and natural gas. This will be defended as efficient because it is highly engineered to look that way from the standpoint of the producer and the consumer. However, from other standpoints, there are externalities that are not accounted for. Those externalities include both the pollution and the intangibles, including the isomorphism around the chosen system. This is still something I'm working out, but the isomorphism includes high voltage AC-based transmission and distribution (which increases the cost of using alternatives, like LEDs, or introducing alternative sources, like solar[1]), an emphasis on greater supply (rather than demand-based solutions such as increased insulation or more efficient motors), centralization (rather than distributed generation), and isolation (rather than integral with the users so that the externalities fall on them). When the design was established 100 years ago, AC was a brilliant improvement over DC, regulated monopolies were promoted as the only viable alternative for generating and distributing AC power, and the accumulated engineering successes within that political framework have been impressive. But nothing is so impressive as the socio-political engineering, including a nearly invincible cloaking device and a strong superstructure made of an alloy of the Edison Institute, politicians, populist regulation cheerleaders, discount rate receiving electricity-based industries (like electrical steel furnaces), coal miners unions, dividend receiving widows and pension funds, and soccer moms worried by the so-called de-regulation that is nothing of the kind. Given a different political framework, the counterfactual engineering successes would be just as impressive, but the overall social efficiency (including the external costs) could be much better.

We furthermore have policies that promote and protect the use of petroleum, including "free" taxpayer-supported road systems and the Carter Doctrine. We have policies that promote and subsidize long distance shipping of goods, including eminent domain and taxpayer support of railroads (mostly as a historical fact, not current policy, though the pension plans still receive special tax recognition and grade crossings are your problem, not the railroads') and container ships. The container shipping history is more recent and includes several very interesting factors. Not only did the state (including the federal government) help break [force] the longshore unions who opposed [to accept] the shift to container ships, but the cities, states, and federal government paid for the infrastructure, including the highway systems, harbor improvements, and dock facilities (cranes, rails, etc.). Today, taxpayers foot the operational costs, including infrastructure maintenance (harbors and roads) and cargo inspections (thanks to our interventionist foreign policies, the great transportation system that brings goods from the world is also a potential Trojan Horse for WMDs), but the investments are promoted as tax-yielding investments rather than the revenue consuming corporate welfare programs that they are.

All of this infrastructure, what W. W. Rostow would call social overhead capital, was put in place in the 60s and 70s, long before Wal-Mart became a force. And yet, having taken advantage of it, Wal-Mart is seen by some as the bad guy. Those who hold that view are mostly self-designated Progressives, the same people who favor central planning for efficient management of the economy. This is the main reason why the two groups -- those who see the infrastructure as the pinnacle of efficient engineering, Wal-Mart as benign, and sustainability as irrelevant, and those who see globalization as the evidence of Western greed, Wal-Mart as the embodiment of evil, and sustainability as the new religion -- talk past each other. One looks only at the engineering and sees none of the underlying political structure that brought it about (and perhaps even opposes any government interference with this "free market" system), and the other refuses to admit that their policy preferences are simply the most recent incarnation of the same policies that got us into this mess in the first place. They want another patch on the binding on the dressing on the bandage on the abrasion caused by the crutches they promoted for a fit patient in the first place.

And to top it all off, we have the same social engineers looking to solve the sustainability problem by imposing unsustainable, modern, Western values onto the undeveloped countries whose citizens are the victims of this system. For them, the real problem in the world is not Western-style consumerism, it's those other people who breed like flies because they're ignorant and poor. This obviously plays into biases some have against swarthy "others", but does not necessarily spring from those motives. And it seems to have escaped the attention of the planners that such lifestyles, having been practiced for millennia, are inherently sustainable.

But no, we're going to retrain them rather than us. First, as the story goes, we have to promote growth. In a recent post, Dani Rodrik says,
"What kind of a growth strategy should this [developing] country follow? A strategy that focuses on expanding employment opportunities in the rural areas where most of the poor live? Should it consist of expanding their capabilities, by investing directly in education and health? Or should it focus on wherever the economic activities that will provide sustainable sources of income growth into the future lie, even if these may be in mostly urban areas and likely to foster greater inequality in the short-run?"
He concludes the latter. But he isn't the first: Rostow explicitly proposed that strategy in his Stages of Growth: increase the efficiency of farming to free up and feed a substantial labor pool that can move to urban areas and work in heavy industry. You can do this by subsidizing cash crops (for export) instead of traditional crops (for consumption) and by providing social overhead capital (transportation). Diana Davis' history of the French colonization of Algeria in Resurrecting the Granary of Rome shows that they accomplished the former by several means: confiscate public lands used by nomadic herders, outlaw traditional farming methods (like using fire to clear scrub), and ban the payment of taxes with in-kind payment (force a switch to a cash economy). People who suddenly couldn't sustain themselves by traditional means and now needed to raise money to pay taxes migrated to the cities to look for jobs with French employers. Note how the preferred policies of modern social engineers are remarkably similar to the policies of colonial powers in an unenlightened age.

After claiming that "The joint stock company owes its existance [sic] to [increasing returns], not so much to state (or other) promotion," in response to which I pointed out the above, one of the commenters on the Env-Econ post, Reason, listed his favored set of policies to reduce population growth:
1. Increasing the duration of education which increases the costs of having children
2. Providing social security which reduces the benefits of having children
3. Better public health so that people can be confident their children will survive
4. Peace (same reason as above)
Having selected government policies to solve a problem, he found no opportunities for anarchism to solve the same, as if he had actually searched for any. I'm not going to defend outright anarchy in a world unused to anything but increasingly active states where force is the first resort, but I should think it obvious that smaller states are generally not pugnacious, so he was wrong about his fourth point not being addressed by anarchism. [2] More importantly, though, he failed to explain how 1, 2, and 3 were going to be funded in a pre-takeoff, sustainable society of the type found in the undeveloped world.

Such societies are marked by their traditional, subsistence farming practices, and their children are a necessary source of labor and the primary retirement pension for their parents. Trade is frequently made by in-kind payment. For example, Diana Davis notes the achaba property arrangement in which herders exchanged their labor for pasture rights in Algeria. In order to introduce education and social security systems to take away the parents' labor and pension incentives, there must first be a system of taxation and management. These emphasize the state rather than the community as a central cultural institution and establish the state as central collection and dispensation authority in addition to, or perhaps in place of, its role as night watchman. More importantly, however, it forces the people to abandon traditional methods of trade and agriculture and to switch to crops and methods or other uses of their labor which are easily traded for cash. That means that they must switch to crops or labor of value to people who have cash, i.e. the developed world. The cash crops must have an export value, or the labor must be in an export industry.

Now, just where do they think The Gap, Nike, and Wal-Mart get their labor, sweatshop or otherwise? This is exactly the point made by Ellenita Muetze Hellmer (about which I wrote here).

Given that the greatest advances in public health are typically made by applications of civil engineering rather than medical science, Reason's third point is the step which usually gets the state involved first in sewage projects, then in national transportation infrastructure (roads, rails, ports), and then in "other" engineering projects (oil field development, power facilities, civil defense, air bases, nuclear fuel processing). I know that's a very unconvincing linkage, but I predict that you could draw these direct lines if you only knew enough of the underlying history. After all, if you have the spontaneous creation of private engineering capability and a weak or decentralized state, those engineers won't go looking to develop a military capability because the politicians and bureaus won't exist or have the means to pay for it. Compare the early US -- where military facilities like Ft. McHenry were still conceived as defensive structures; the design and construction were ad hoc, Golden Carrot-type contracts (award a prize to the best designer); and community-based (the federal government granted money to local communities and provided the construction design) -- to modern US military-industrial arrangements where contractors conceptualize, design, build, and endlessly refine offensive weapons while the spin-offs are touted as beneficial to the public (the internet from DARPA, Tang from NASA, etc.). Or consider the military pedigree of modern quality control theory.

When people in the developing world are employed by consumer-oriented industries, what values are transmitted? The employees at Nike factories in Viet Nam first bought bicycles (sustainable) and then motorbikes and now look forward to moving up the consumer ladder to a car. In China, cars (especially with "foreigner" plates) are a highly desired commodity and the sustainable bicycle culture is all but dead. The developing world, with encouragement from the social engineers in the developed world, is building a sketchy replica of the type of economic system whose money they wish to attract. They believe they can attract that money by feeding the West's insatiable maw with container ships full of cargo. I called this (tongue-in-cheek) a Cargo Cult (which seemed to offend odograph, though I don't understand why). Unlike the actual Cargo Cults, it may succeed in attracting the money. For some people, for a while. However, it is not the road to sustainability and it is unlikely that 9 billion people will succeed in enjoying the lifestyle currently enjoyed in the West. The problem lies with us and our chosen means, not them and theirs. The solution lies with change in our society, not with them choosing our existing means.[3]

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[1] Yeah, I know: where would the LEDs and solar cells come from absent the system that provided the R&D resources to discover them? This is perhaps not as strong of a counterargument as you might think: Einstein theorized the photoelectric effect long before the R&D resources were available, and perhaps more would have gone into searching for practical applications it if the political support for large, central, coal-fired generation had not been as successful. No legal monopoly means higher cost and more awareness of the externalities because nobody could afford to build large, centralized systems. That in turn means more searching for alternatives. Also, it would be more feasible today to install a small solar or wind system (like many farmers had before the REA) because you would only be replacing or plugging into a decentralized subsystem.

[2] It is at least arguable that an unstable anarchy is potentially very violent - even David Friedman admits as much in noting that Saga Iceland collapsed in a series of blood feuds, albeit after 300 years of stability. But a stable anarchy can't raise the money or army to go looking for a fight.

[3] Yes, I'm also concerned about population issues. But I think that a less important problem compared to that of Western consumerism. I also think it foolish to believe that a proper list of policies and a certain amount of money is going to solve the former, or a sudden majority of libertarian politicians the latter. Solutions to both problems require wholesale changes in cultural attitudes and values; politics and economics only take you so far. Sometimes the state can lead cultural change, but not always. And not always for the better. Saying self-evident things like, "education of women is important to control population growth" doesn't mean much in Islamic or other traditionalist societies where women are relegated to second class status. I doubt you could fund or force anything which would work. Creating change in those climates requires something that operates on a more personal level than a United Nations program, something that flies under the states' radars, something that cannot be denounced by Imams.

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Tuesday, August 21, 2007

Coase is not magic; neither are agencies

Given that my original response to Megan included a very tepid mention of Coase -- and that not even a central argument -- and that I tried to calm the overenthusiastic commenters on the first MR post, I don't think her post "Coase is not magic..." was aimed at me specifically. However, it is worth noting what is wrong with it. She says,
Coase requires low transaction costs, which is a stumbling block between two multi-party resource users, but maybe not insurmountable. It also requires perfect information. That is harder. But the real problem is that farmers are not profit-maximizers along every variable that they manage.
...
If your first sentence doesn't overcome the problem that farmers are not profit-maximizers in water use, DO NOT write a second sentence explaining a theory that depends on that assumption.
1) I reject Megan's premise: Coasian bargaining does not require profit maximizing farmers. If we were to accept these conditions for the operation of incentives, then there are many more policies we should reject.

One of my favorite measures of whether energy is too expensive is to note the presence of Christmas lights in poor neighborhoods. When they are on all night, electricity must be cheap. Likewise, when the local high school parking lot is filled with gas guzzlers which they use to drive 500 yards to Sonic, gasoline must be cheap. The people engaging in these and other behaviors (e.g. failure to install CFLs) are clearly not profit maximizers by Megan's definition (they are rejecting free methods for saving money on energy like turning off Christmas lights at bedtime, or not hanging them in the first place). So what good will it do to promise them a little more money to install solar or buy a Prius? If the rise in gasoline prices by $2 in a few years won't change their habits, what good will a little carbon tax do?

I doubt that Megan or for that matter anyone else is going to accept the idea that those people won't change their habits in the face of a tax or subsidy. The point is that people will change their behavior on the margin if not on average. This has nothing to do with their ability to maximize along every variable. It has much to do with their response to incentives.

Incidentally, I'm not convinced that farmers are as hard-headed or superstitious as implied. We have evidence that farmers are capable of quite sophisticated maximization and bargaining. Steven Cheung ("Fable of the Bees: An Economic Investigation") and David Johnson ("Meade, Bees, and Externalities") reported in 1973 that it had been common practice for nearly a century for farmers to pay bee keepers for pollination when they needed those services (to enhance yield), but for the keepers to pay to put their bees in a field in order to promote honey production in other seasons. I have also read that some farmers engage in fairly sophisticated hedging in the commodities markets using Scholes-Black option-pricing schemes.

2) Nor does Coasian bargaining require zero transaction costs or perfect information. These may be requirements of the "Coase Theory" as popularized by Stigler in his textbook, but I find no such argument made by Coase in the original article to which these discussions refer, "The Problem of Social Cost".

As Alex correctly points out, such conditions are sufficient for Coasian bargaining to yield an efficient result, but they are not necessary conditions. I doubt whether there are any markets in which there are zero transaction costs or perfect information, yet markets in general seem to work well. The best treatment of this subject, once again, is David Friedman's from Law's Order, webbed here (you'll want Chapter 4). He divides the explanation up into three parts: Nothing works, Everything works, It all depends.

Nothing Works
is the explanation of the world in which the allocation of rights seem to be handed out in an arbitrary manner despite the fact that it is the presence of both parties that causes the problem. The polluter is as responsible -- but not more -- than the people living downstream because if they didn't live there, it wouldn't be called pollution. Then Coase introduces the part which Megan and Barkley Rosser (see his comments here) seem to have in mind: in the absence of transaction costs, you could give the property rights to either party and it would be negotiated to an equitable outcome (Everything Works). However, this only covers about one-third of the original essay, because Coase then moves on to relax the assumption about transaction costs. In the presence of transaction costs (the real world), it all depends on initial allocation of rights and the relative magnitude and direction of the transaction costs (which are not symmetrical).

At its heart, Coase's point (as distinguished from the Coase Theory) is about (a) property rights and especially (b) transaction costs and their interaction with both disputes and the regulatory/judicial environment. One-third of the way into the essay, Coase points out,
The argument has proceeded up to this point on the assumption that there were no costs involved in carrying out market transactions. This is, of course, a very unrealistic assumption.
...
Once the costs of carrying out market transactions are taken into account it is clear that such a rearrangement of rights will only be undertaken when the increase in the value of production consequent upon the rearrangement is greater than the costs which would be involved in bringing it about. When it is less, the granting of an injunction (or the knowledge that it would be granted) or the liability to pay damages may result in an activity being discontinued (or may prevent its being started) which would be undertaken if market transactions were costless. In these conditions the initial delimitation of legal rights does have an effect on the efficiency with which the economic system operates.
That seems a far cry from "requiring no [or low] transaction costs". It says that the bargaining will depend on the relative costs and the initial allocation, but Coase himself is at this point emphasizing the effect of transaction costs, not assuming it away.

3) In my original response, I was reacting to Megan's table-banging defense of bureaucrats (something Bernard Yomtov seems to have overlooked) by pointing out that (1) the state had created the problem by forgetting earlier agreements, (2) that all attempts to "balance competing needs" had been all-or-nothing, winner-takes-all decisions that disregarded earlier settlements, (3) the logic of politics and bureaucracy drove those decisions and serves to perpetuate the bureaucracy rather than creating solutions, and that (4) contra the so-called libertarians commenting on Megan's site, a libertarian response would almost certainly not favor the farmers. I listed several interesting arrangements that would inform a truly balanced, dynamic solution. Without saying it, I was implying that the required balance might be achieved by allocating the property rights to the fishermen and/or tribe. For one thing, this has the intuitive appeal that it restores the rights to the initial holders. I believe it also holds some promise for the situation. Curiously, the "Coasian" initial rights allocation assumed by Megan and many other commenters including the Coase cheerleaders have all been the same, and opposite to those I implied.

Under farmers' water, I agree with Megan that the farmers may be too conservative in selling and the fishermen too uncertain about how much to buy and how high to value it. However, under fishermen's water, while the fishermen might also be too conservative in selling water (resulting in the extreme in the outcome ESA advocates defend), the farmers ought to be able to calculate fairly precisely how much water to buy and how much it is worth. In reading about corn, cotton, and soy, I have found that there are fairly well-known relationships between local conditions (temperature), water, and crop yield. Undoubtedly, many farmers would choose not to farm at all under conditions in which they have to buy water at market (and hopefully they would have to buy electricity at market, too). Some farmers would buy the water at market and probably squander some of it. And some farmers would choose to farm under conditions in which they would maximize yield from every drop: this gets Megan the agribusinesses with Cadillac water systems she prefers.

As I noted in my first response, there is historic precedent for this arrangement. As Richard Stroup reports in the article to which I linked but I doubt anyone read,
In England and Scotland, for example, unlike in the United States, the right to fish for sport and commerce is a privately owned, transferable right. This means that owners of fishing rights can obtain damages and injunctions against polluters of streams. Owners of these rights vigorously defend them, even though the owners are often small anglers' clubs whose members have modest means. They have formed an association that is ready to go to court when their fishing rights are violated by polluters.
Although the US is normally associated with strong property rights protections, I find it interesting that we don't have such arrangements. There is probably a historical curiosity involved, but why haven't our legislators or bureaucrats noted the benefits of the arrangement and taken action to import it?

(What follows is conjecture that is relevant, but perhaps not entirely clear.)

I believe this issue illustrates a common problem: bureaucrats are too unimaginative. They think that by weighing lots of opinions and arriving Solomon-like at a decision that they are "balancing the needs" and that this is very creative. This isn't substantively more creative than what teenagers would do in adjudicating a schoolyard fight between pre-teens by picking their favorite and enforcing it through threat of violence. A really creative solution would be to figure out how to strengthen existing self-governing institutions or establish new ones that don't require the constant attention of some state agency.

I have a house and a yard; people rarely trespass. It isn't just because of the threat of police action; professional criminals know how to get in and out without getting caught and random break-ins are rarely solved. Besides, simple trespass (walking across my yard) could be accomplished without even my knowledge. The secret is that everyone knows, understands, and accepts the difference between that which is their property and that which isn't. The idea is self-enforcing and scales rather well.

In David Friedman's "A Positive Account of Property Rights", he explains how bilateral agreements to behave civilly may be described as a series of Schelling Points (Schelling Points all the way down, so to speak). Among them is arguably private property rights. I have conjectured that policy decisions (regulations) are not only Schelling Points, but because they generate similar ideas about how to proceed, they are Schelling Means (I think the literature would probably still call them Points). Regulations are a Schelling Means that generate additional Schelling Points that strengthen the state without intending to do so. In common usage, people are quick to say, "There ought to be a law..." because force is the first solution that comes to mind and the state sanctions force through legislation. Few people are happy with the results when the state grows out of control (fascism/communism) or comes under the control of less-than-stellar politicians (corruptarchy), but this is what happens when we rely on agency-enforced regulations for every problem, perceived or real.

Contrast those results with the institutions of civil society that generate Schelling Points that strengthen society. These would include property, trade unions, family, banking, mutual aid societies, education, money, agriculture, and common law. These are obviously not easy to create from whole cloth and doing so is an act of immense creativity. Forming voluntary associations to create institutions to address problems was a characteristic of Tocquevillian America, abandoned in the Progressive Era. Our goal should be to build Civil rather than State Schelling Means; we can expect a fight from those most interested in preserving or extending the State Schelling Means.

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Sunday, June 03, 2007

Running on glue and tar

My wife and I have been discussing where the world is going to go in the post-Peak Oil era. I for one am optimistic, but concerned about the transitional period. I think that we (humanity) will develop a variety of responses to the problem(s), and that we will be better off in the end, but I am concerned about the rate at which the transition will occur. There may be upheaval and pain in the interim, regardless of who is in the White House or what policies we follow to get there.

In the comments on Matthew Yglesias recent post on gouging, we see a response to higher fuel prices that I think is indicative of lazy, uncreative thinking. Simply keep piling on one supposed remedy after another. This is creative thinking in much the same way that fixing your mistakes after rushing through a job is productive work. (for my previous thoughts on gouging, see here, here, and here).

Some things seem to escape the attention of people who think like this. For example, the crimes committed by a gas station owner can be determined by looking at his prices compared to his competitors' as follows:
  • higher: gouging
  • lower: predatory intent
  • equal: collusion
In this environment, it might be worthwhile to keep a lawyer on staff, nicht war? And since the laws are subject to change, a lobbyist might be useful. If everyone has to have lawyers and lobbyists, that creates a competitive advantage for larger businesses. I think I can assume that people who are against gouging are also against large businesses, so why don't they understand or acknowledge these problems?

---------------------------------

Then, I was reading about heterodoxy, Cowen, and Veblen, looked up Veblen, got side-tracked by Giffen Goods, and finally came across an essay in The Nation by Sasha Abramsky entitled, "Running on Fumes". He raises the idea that gasoline is a Giffen Good, one that poorer people will come to spend more on even as its price rises because they are locked into it.

Sasha says,
Indeed, the very fact that some commentators, such as the Cato Institute's Jerry Taylor, so glibly assume (or, at least, assumed pre-Katrina) that an oil price shock can be painlessly absorbed shows just how invisible the country's poor have become to much of its pundit class.
Since Taylor's offending comments are neither quoted nor referenced, I can only guess that Taylor said something like, "let the price mechanism work" in response to calls for price controls. The month prior to Abramsky's piece, Taylor wrote about fuel prices in NRO. I would recommend reading both before proceeding with the rest of this post.

Back?

It is of course debatable whether the price mechanism will work well with regards to energy. In the comments on James Hamilton's Peak Oil in America post, Stuart Staniford claims that recent empirical research indicates a short-term price elasticity of -0.05. An older survey indicates that the long term price elasticity is around -0.8 and the short term is around -0.2. In any case, this is for a general population, not the poor, so it is only indirectly relevant to the point. If these two articles can be taken as accurate, the indicated decrease in elasticity (magnitude) indicates that it will be harder to curtail gasoline use as price goes up than it was in 1979-1983; I would assume that it would be harder for the driving poor, but perhaps not so much for the urban poor who have access to other options. (I graph oil use vs. oil price here, but have not updated it since October 2005. Note how much reduction was achieved 1979-1983.)

Near his conclusion, Mr. Abramsky claims that the decline of the rural area about which he is writing is preventable, but
prevention involves the sort of innovation the Bush Administration, besotted as it is with laissez-faire triumphalism (not to mention oil-industry campaign cash), has been reluctant to embrace.
Did you just experience a self-administered lacto-nasal enema upon reading -- in a single sentence -- that the Bush Administration favors laissez-faire policies and that laissez-faire and oil-industry campaign cash are not mutually exclusive?

Indeed, this seems to be common in discussions of gouging, Peak Oil, current pricing, and related issues. Are Mr. Abramsky and the commenters on Matthew Yglesias' blog really claiming that the oil industry enjoys laissez-faire trade policy? That seems so absurd on its face that I cannot believe it needs rebuttal.

The oil industry came of age in the Progressive Era. Oil production had steadily increased and prices decreased for the entire history of the industry through the antitrust prosecution of Standard Oil. As the automobile caught on and demand heated up, Progressives were excited to be able to subsidize a competitor to railroads. Then, as the US got involved in World War I, businessmen eager to be freed from antitrust regulation jumped at the invitation to participate in the Commodities Section of the Petroleum War Services Committee and the Oil Division of the United States Fuel Administration. Dominick Armentano points out in Antitrust and Monopoly, that A. C. Bedford, president of Standard Oil of New Jersey, was appointed as chairman of the War Services Committee. Their experience of cooperation and "supervised competition", and the concurrent worldwide embrace of central planning (think about what was happening in Russia, Germany, Italy, and even England in the period between wars), paved the way to the corporative-creating National Industrial Recovery Act. When that was struck down, the Connally Hot Oil Act of 1935 was passed without hearings to maintain stability in the oil industry. It allocated state production quotas and provided a means to enforce restrictions on interstate transshipment in excess of those quotas.

The military has been tied in to oil production or at least the Middle East
arguably since Eisenhower placed troops in Lebanon in 1958 and Kennedy defended Saudi interests in 1963. More recently, in 1980 Jimmy Carter announced the Carter Doctrine, stating that the US would defend its oil interests there. You have the obvious Bush wars since then, with Clinton lobbing a few bombs and establishing bases in Saudi Arabia in between.

In addition to regulatory and military support, we also have regulatory intervention and distortion. As James Hamilton has pointed out, one reason for the increase in gas prices during the tight markets in 2005 was the fact that the national market is segmented by EPA requirements and refineries cannot easily switch between the various boutique fuels favored by - you guessed it - Mr. Abramsky's fellow travelers. Finally, we have people who insist that we need to increase gas taxes so that we, like Eurotopia, will have gasoline prices near $10 per gallon.


Any guesses as to whether The Nation favors those higher fuel prices? I searched for "carbon tax" on their site and got 78 hits; the first one says, "A carbon tax would be simple --" The author goes on to add that
And as Charles Komanoff of the Carbon Tax Center argues, at least part of the proceeds of the tax could be rebated to poor and middle-income households through the income tax system, neutralizing any inequities. The unrebated balance could be used to subsidize alternative energy research and production. Given the historical successes of government funding of basic research in computing and medicine, there's every reason to believe the products of this work would be very promising.
Another two-fer: not only do we learn that the simple tax now has lots of other little simple ancillaries, like using the simple income tax system to rebate for gas, but we also discover that the government's funding of basic research has a proven track record. They don't explain exactly how we figure out the difference in rebates between subway-riding New Yorkers and rural Californians, so perhaps it is not as simple as they first insist. Nor do they actually compare the government's track record in conducting research to anything else, like privately funded applied research. Now, I think it's possible that government gives the private sector a good run in basic research, but recall that the human genome was first decoded by a private company in 1/10 the time and budget as that proposed by a government agency. But the private sector is much better at applied research, which is what was meant by "subsidize alternative energy research and production." So they call for applied research based on the government's track record in basic research? Nice sleight of hand.

--------------------------------------

A greater protest must be registered over Mr. Abramsky's nearly complete silence on the century of other Progressive policies that have pushed the poor out of town and into the oil-based lifestyle. Once again, we can refer to Gabriel Kolko's Railroads and Regulation and The Triumph of Conservatism for an understanding of the politics underlying regulation in the Progressive Era. The tongue-in-cheek, short version is that competition was largely working for everyone except the capitalists themselves. Competition was forcing costs down so far that they were all headed for bankruptcy, so they tried cooperative arrangements. When those failed, they turned to the federal government to act as the cartelizing agent. Though Kolko doesn't specifically address it, it is easy to see that the electric power industry faced the same logic of high capital costs, low marginal production costs, and the resulting expansion, competition, system building, bankruptcy, and "need" for regulatory intervention. This eliminated the "destructive competition" in rails & utilities by constraining competition and innovation. The whole point of regulatory oversight was not consumer protection, as the unsophisticated, narcissistic state-worshipper would have you think, but rather stabilization for the industries so they could go back to peace, quiet, and regular dividends. That is why deregulation and people like Craig McCaw and Michael Milken were so upsetting to AT&T in the 1970s and 1980s, and why electric utilities are so resistant to deregulation today.

The same public who first wanted to give land grants and rights of way to railroads and canals in order to get rid of private turnpikes, and then wanted to constrain railroads because the average voter didn't understand the logic of the capital-intensive industry they had spawned, and now didn't like the fact that their regulations created a de jure cartel, wanted roads. They joined the Good Roads movement and fought for public subsidies for bicycles and then cars. When Louis Brandeis brought Harrington Emerson to the stand in the 1910 Eastern Freight Rate Cases to argue that every industry could be rationalized with and every consumer benefited by Taylor's Scientific Management, the public caught the bug for the Efficiency Movement and Technocracy Movement. They wanted to centrally manage everything. The goal was, as Herbert Croly put it, to produce "Jeffersonian ends with Hamiltonian means".

As outlined above, the Progressives in WWI and FDR's cabinet in the Depression and WWII supported a state-industrial oil policy to further rationalize oil production and distribution. In conjunction with the Good Roads and subsidization of the automobile (which gave rise to the Golden Age of manufacture and its corresponding anomie and unionism which many Progressives yearn for), the stage was set for moving out of high density urban areas and to the suburbs.

The push to suburbia has also been helped over the years with some uniquely Progressive policies. Rent control in New York City, for example (I once read that poverty-stricken Walter Cronkite lives in a rent-controlled building). The aforementioned utility subsidization, including the TVA and REA, which replaced farmer-owned windmills with investor-owner utilities. More recently, to "preserve their character" (a euphemism for "preserve their property values"), many cities (bastions of Right Wingerdom, like San Francisco) have banned urban development, forcing people out of town to find affordable housing. To pay for a wide variety of programs, some of which used to be privately provided by the working classes for themselves, cities have raised property and sales taxes (Santa Fe, for example: there's a reason you need to make $10/hour to live there, and it mostly has to do with California millionaires moving into the City Different; most of them are not exactly Goldwater Republicans). While the upper and middle classes were leaving the city to live in clean, quiet neighborhoods, these policies were all pushing the poor even further out of town.

In the specific case Mr. Abramsky addresses in his essay, the size of those towns probably needs to be smaller. They were dependent on mineral extraction and timber, both repeatedly attacked by people like Mr. Abramsky, but probably not by Jerry Taylor. Indeed, it's probably a safe bet that when people like Jerry Taylor raised the issue about the impact of stopping resource extraction on the workers, people like Mr. Abramsky glibly dismissed it, saying that the economy could easily absorb the jobs lost. But I will go further than either of them and point out something both should agree to (if they want to be logically consistent with their probable core values): continuing to live in a non-agricultural rural area is inherently energy intensive, and we should not continue to subsidize it if we really think Peak Oil is a concern.

I recently came across a site (probably something on Gristmill dealing with global warming) that claimed all of the skeptics of (Kyoto?) never provide any suggested solutions of their own. Does Mr. Abramsky offer a suggested solution for the poor people he exploits for his article? He offers a vague mention of mass transit, a system that works well in high density areas like Europe and the Northeast Corridor, but probably not in Northern California. He seems to imply that George Bush is personally responsible for the lack of mass transit despite the fact that ridership is higher than it was under Clinton.

Abramsky makes a quick offer to help them pay for oil, thus furthering the addiction that has them in this situation in the first place, and contributing to a 150 year legacy of trapping people in a state-underwritten prison. The latest insult in that legacy has been the ethanol subsidy, a Carter-era program with bipartisan support for all the wrong reasons: it reduces imports, it supports "family farmers", and it is "renewable". First used to replace lead (Pb) and reduce pollution, it actually increases certain types of pollution. The subsidies for "family" corn farmers mostly end up in the pockets of ADM. And the renewability, touted by Progressives, is having growing implications for poor people. As I noted in my review of Joshua Tickell's From the Fryer to the Fuel Tank, "Some bio-cheerleaders ... claim that a large scale shift to biofuels won't affect food prices, but that is almost certainly wrong. The amount of land required to make a dent into our petro-fuel usage would easily require both the fallow fields and some land currently used for food production. Demand up, price up, QED." Given recent headlines, I'm going to claim prescience, but I think every clear-headed person could figure this out on their own. Even Noam Chomsky figured it out in hindsight.

Finally, Abramsky also mentions the possibility of subsidizing efficient vehicles, something that has been going on for several years with mixed results*. In other words, we get some paeans to Progressive programs and a demonstration of how much good Mr. Abramsky can do with other people's money to prove that he cares. Some of his explanations are wrong, some suggested solutions are demonstrable failures, and one at least will probably make things worse (subsidizing oil? Really?!). At no time does Abramsky recognize or even seem to be aware of the contribution of his intellectual predecessors to the creation of the problems of today's poor. Instead, he turns the tables, claiming that those problems were caused by people like Jerry Taylor and policies like laissez faire and implying that anyone who doesn't accept his vaguely defined solutions is responsible for the misery and possibly death of the poor. "Laissez faire means you don't care."

Now, Mr. Abramsky is correct to question the effect on the poor, but he has come to exactly the wrong conclusion. His essay is nothing but rhetorical sleight of hand intended to impugn Jerry Taylor and anyone who dares suggest that the price mechanism is a better mechanism than any other so far identified to coordinate oil supply with oil demand. Mr. Abramsky is like George Washington's doctors who kept letting his blood, and upon remarking how sick he appeared -- probably the result of too much blood letting -- tried more blood letting.

Note that I did not say the price mechanism is the best means. Again, thinking negatively (what is that? perhaps not what you think), there may be a solution of which I have not heard yet, but until then the price mechanism is the least worst solution. Price controls are predicted by theory to create shortages, and the theory is confirmed by empirical data. A shorthand way of explaining this is the gas lines in the 70s and in Baghdad today. Surely, if the poor need gasoline, then some at high prices is better than none at any price? Ridiculing the least worst answer, or insulting the person who acknowledges it, is like accusing your doctor of murder for informing you that you will inevitably die.

Furthermore, Mr. Abramsky never seriously looks at the total effect of the price mechanism. It not only curtails demand, but it stimulates supply. Note the implications of this chart in The Economist, from the article "Venture Capitals". Furthermore, note an idea from this episode of Nova: "If you look at companies, like SunEdison, who are helping retailers put up solar panels on their roofs, you're suddenly seeing a linkage of the capital markets -- which have traditionally been very reluctant to get into solar energy -- with the retail sector. That's how you do things in America. You link the technology to the capital, and that's where the rubber hits the road." In America, the capital markets respond to a problem, while in other countries, the politicians respond. The former have to spend their own or their clients' money and are held accountable, the latter not so much.

"So what", you might say, "I don't care who produces the solution, so long as there is one. And so long as it benefits the least well off."

Well, here's so what. I'm vaguely familiar with the theory of functionalism. It says that institutions exist because a society needs them; institutions serve a purpose, a function. When I first heard of it, I immediately thought that it seems circular and lacks a mechanism to describe change; this appears to be an ongoing criticism of the theory. In any case, proponents of this theory use it to justify the existence of government agencies: obviously we must need them if they exist. If you evil bastard libertarians abolish some of those agencies, people will suffer.

That is true as far as it goes. It doesn't go far enough, though. There are two problems with it.

First, I have always believed that there are two problems faced by people who desire change: one is describing a desirable and reasonably realistic future. That is what I like about Kirkpatrick Sale. The second is to describe the path, how to get from here to there. The problem with simply saying "abolish such-and-such program" is that it doesn't describe what we reasonably expect to replace the functionality of that program or how the private institution that replaces the program will spontaneously evolve. For one thing, we don't know what it will look like or how it will evolve: if we did, we'd be in favor of planning. For another, "spontaneous" does not mean "instantaneous", and "evolve" does not mean "appear out of thin air".** So they are right to think that people would suffer if all we were saying is "abolish such-and-such", but we aren't: we are saying, "abolish such-and-such and allow some time for a better solution to evolve." Clearly, though, we need to do a better job of understanding and then explaining how institutions evolve.

The second problem with the functionalist-statist analysis is that it is usually based on an ignorance of history. Remember, if the existence of an institution implies a need for it, what answered that need before the government agency? This is a problem with the change mechanism in functionalism - if the agency sprung from nothingness, either the need must not have existed before, or the agency didn't spring from nothingness. So how does functionalism account for how or why would such a change occur? No answer seems to be forthcoming (but I admittedly have only a kindergartener's view of functionalism). In many cases, though, the solution to the riddle is that a private institution answered the need until it was co-opted by the government. As David Beito has documented, that was the case with much social insurance. The victor (the government) also gets to write the history and teach it in the schools it owns, so few people know about institutional arrangements that probably haven't existed for generations.

Let me bring this full circle.

Sasha Abramsky and others are claiming that laissez faire is not the answer to the problems posed by high gasoline prices for poor people, they are claiming it is the problem. I'm going to consider this patently false until someone can successfully convince me that oil policy is and has been laissez faire. Even stipulating to that claim, though, their recommended solutions of subsidizing the addiction would only prolong the problem and -- given that agencies rarely die once created -- would make the problem worse if oil prices should fall. They are refusing to face the possible fact that this area of California, like the Corps of Engineers' New Orleans, should not be as heavily populated as they were in the cheap-energy past. However, had laissez faire actually been practiced instead of the heady policy brew we have endured for the past 100+ years - regulating railroads and utilities, protecting them against innovators, encouraging suburban expansion, promoting efficiency in energy production at the expense of efficiency in distribution, reliability, and end use, then perhaps the poor people described in Mr. Abramsky's story wouldn't be locked into the lifestyle they are. People like Mr. Abramsky spent taxpayer money on the system that got them into this mess, now he has 100 ideas on how to spend more to keep them in the manner they have come to expect: poor, dependent, and hopeless. Ecologists refer to this approach of endlessly proposing the same solutions to the unintended consequences caused by an earlier round of similar interventions as "parachuting cats."

Given the power to enact their vision, they would systematically destroy every last vestige of spontaneous, private order in an effort to build community values. But such governments have a tendency to collapse of their own weight. When they do, the survivors look around and note that the community was kept together only by the fear of the increasingly necessary police state. There is no community spirit in such a place. Look at what the inhabitants of Russia have been enduring after the collapse of their system. Listen to this article on NPR about the lack of community values in Albania. No, really, listen to it. Generations of socialist theory have wiped out everything they knew about civil society. In America, de Tocqueville marveled at the Association phenomena; in Russia, people wished for their neighbors' barns to burn down.

That is why I prefer private to public institutions. I don't believe in market "magic"; too often have I been a disappointed consumer. Private solutions may not be perfect, but neither are state institutions. Too often have I also stood in DMV lines.

Cooperatives and associations are more democratic than an agency run by career bureaucrats. Furthermore, even Hirschman now acknowledges that Voice works only when Exit is a viable option. As a result, on average, private institutions are flexible and responsive and will evolve; public agencies are rigid and arrogant and will stagnate.***

Nobody resents an association they neither belong to nor pay for, even when that institution stands for something they loathe, but everyone hates paying for those parts of the government they oppose (agriculture? military?). Those who oppose democracy distrust private organizations and vote to suppress them (think Red Scare, Alien and Sedition, Palmer Raids, Radio Caracas Television). Those who genuflect to democracy cannot understand why people would vote for what they would call "undemocratic" programs and politicians. To comfort themselves, they develop theories of conspiracy, brainwashing & propaganda, or false class consciousness. They then begin to support politicians who promise to thwart those poor demented creatures, the opposition; in the end, the democrats line up to vote for the fascists, who proceed to replace private institutions with state institutions. The democrats are surprised when the anti-democrats take control of the machine and use it in surprising ways, perhaps even contrary to its original intent.

A public policy and agency require no imagination or creativity; simply - and I mean simply - propose a blunt mechanism for addressing whatever problem vexes you, then either declare victory or ask for more money and authority. The clever politician does both at once. Opponents can always be demonized as unpatriotic, asocial, and dangerous. A private institution requires work, creativity, conviction, persuasion, and innovation. It promotes civic values. Think Wikipedia, an institution created by libertarians (yes, Virginia, Jimbo Wales is one of those people). That is why I think that government is the intellectually lazy man's solution, and why it endangers the poor man whom he seeks to save.



* Yes, the Prius is great, but I get 46+ mpg with my non-hybrid. Somehow, the powers that be decided that hybrid was better than diesel, even though diesel fuel can be made easily from waste oil and renewable oil. I would argue that this is rather short-sighted, but not atypical. Also, several years ago I remember reading about the skyrocketing price of Suburbans in Arizona due to a shortage of them; apparently, the state was subsidizing a version with an alternative fuel modification (LNG or propane), but you could still run it on gasoline, so people were driving in from out of state and taking ownership of a friggin' Suburban at taxpayer expense for the purpose of saving gas. Personally, I think that if there is a role for the government here, it is to fund an E-prize as Lovins et al describe in The Oil Endgame. Remember, however, that the E-prize is named after the Ansari X-prize, a privately funded prize that has been moderately successful.

** In case you think I'm exaggerating about the strawmen used by anti-libertarians, look at what this says about libertarianism: "Libertarians believe (like Marxists believed back when there actually were Marxists) that if the government just shriveled away, a paradise would naturally spring into existence." Spring? It took hundreds of years to kill some institutions that themselves had to evolve over hundreds of years; only a fool would think they could be replaced overnight. Similarly, only a fool would think that "stroke of the pen, law of the land" equates to "problem solved". They are generally surprised to find out about "unintended consequences". Other than that, Midas' claim that things claimed by libertarians have never existed exposes the breathtaking ignorance of actual history usually found in people who read only popular history books. He could try starting with Homage to Catalonia or The Machinery of Freedom and work his way up from there.

*** Size is also important: I will take a small, decentralized public institution to a large corporation. Centralization and the distance between the top of the hierarchy and the end users or customers are also factors.

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Sunday, February 04, 2007

Paternalist Slopes

I submit this in response to Glen Whitman's post by the same name. It's a topic that has had my interest lately.

I) There is a three step approach to policy-making:

1) Identify market failure (sometimes traditional, i.e. externality, but increasingly prevalently cognitive bias, bounded rationality, etc.)
2) Recommend and implement policy
3) Declare victory!

I first realized how badly the defenders of state action needed to be called on this approach in this exchange with Mike Huben. Mike thinks that state action in private, sexual matters is easily justifiable:
"Private sexual behavior has plenty of unintended consequences, most notably unwanted pregnancy and disease transmission. Both are important reasons for state action, although such action should be as little intrusive as possible. Thus, for example, we have sexual education requirements in schools. And required VD tests before marriage."
Unintended or not, these actions are not normally thought of as external. Assuming we are talking about normal adults, the actors know the risks for both, and the consequences will fall on them, not a third party. Absent an externality (I thought of at least two weak ones, but it isn't my job to provide Huben's argument), what is the real failure here? Yes, there is imperfect knowledge here, but that is true of *every* transaction, and hardly a compelling motivation since the authorities lack perfect knowledge themselves. There is also information asymmetry, but there are private means of addressing this: dating, gossip, reputation, etc. And even if we could identify a failure, do the policies address it? People have sex all the time without getting married and therefore entering the realm of VD test requirements. Further, some states don't require such tests, and others show their root in the legislative biases of bygone eras as they continue to test for syphilis but not AIDS. Despite increasingly common and frank discussions of sex in schools, teenage pregnancies remain high, much higher I believe than before the new openness (an era brought about, in part, by the pill). But no, merely identifying the problem and a policy that nominally addresses it seems to be enough. The 3-step process is a simplified but essentially correct version of what is formally known as Second Best Theory.

Why does the analysis of such policy go no further? We know that policy-makers (both legislators and the technical experts in the agencies directed to carry out policy) are subject to the same biases the rest of us are. Look at this history of marijuana laws presented by Charles Whitebread before the California Judges Association. At every step along the route, it was done for the benefit of the users themselves, but the evidence to support each piece of legislation was so flimsy as to defy rational explanation. Especially notable is the fact that at first, marijuana was demonized as being the drug morphine users would fall back on, and later the same people argued it was the gateway to heroin, without apparently blushing. Yet, here we are.

We also know that policies frequently have unintended consequences themselves; think of the effect of subsidizing sugar on the Everglades, or rent control on housing in NYC. We know government failure exists as surely as market failures do; rent seeking is as real as adverse selection, and bringing public good production under federal oversight does not make it less a public good. So it seems rational to me that instead of having, "3) Declare victory!", we should instead have an analysis of the policy, analysis of private alternatives to the policy, comparisons of the two, and a recognition that the least worst policy may be to fail to legislate proposals simply because we can create them without regard to their efficacy or the alternatives. As I wrote on the Becker-Posner Blog entry on Sunnstein and Thaler's Libertarian Paternalism, "The analysis rarely if ever proceeds to look for problems with the policy solution (both market and gov't failures may be present), possible secondary market solutions (e.g. Consumers Reports and Carfax in the case of lemons), or even whether the policy solution will actually address the failure rather than just intend to address it."

I do have reservations, however, about Whitman and Rizzo's vagueness argument: as I pointed out in my comment on Utilitarian Blindness (thanks to my wife for making me confront this), the simple fact that we cannot make all relevant calculations of utility does not mean we should not undertake a policy. I am here simply pointing out that perennial fans of policy-based solutions have not even identified all of the trade-offs, much less attempted to calculate and compare them.

II) There is also an implicit belief that people *should* be coldly and unrelentingly rational. Should they, really?

Despite Spock's faithful adherence to logic, Kirk could regularly beat him in contests. Who was the only successful Kobayashi Maru captain? This is entirely plausible because these were games of strategy where logic could either run you into an undesirable corner (think of the prisoner's dilemma) or fail to illuminate a potential successful but entirely non-linear direction (think Hofstatder's explanation of Godel's Theorem in Godel, Escher, Bach: an Eternal Golden Braid), and at very least fail to yield answers when they were needed because there were too many unknowns.

That last possibility is one which I think most important. When making time-dependent, strategic decisions, the information required to make a perfectly calculated, rational decision are frequently not available or not knowable. The human advantage is in having an evolved set of mechanisms for making decisions based on scant data, a process which we call, "gut feel", "instinct", or "intuitive". Think of Malcolm Gladwell's Blink. Over time, these abilities may be developed to a high degree - chess grandmasters, extraordinarily successful athletes, and polymath entrepreneurs use a combination of calculation and intuition.

That mechanism may fail us when researchers have set up a game and are watching. They know the "unknowable", and are specifically trying to trick the subject's mechanism into taking the wrong tact. I wonder, however, if anyone has ever tried analyzing what happens when they show participants the outcome and then run the experiment again? My guess is that participants get better at overcoming their biases. I would also guess that now that we humans have identified the phenomenon of cognitive bias, over time this information and strategies for avoiding its problems will disseminate to the public at large. Those who successfully incorporate this knowledge will be successful in life, possibly more successful at breeding, and thus we may breed cognitive bias out over millenia.

If people won't be cold, calculating, automatons, then it is the intent of scientific planners that government take over their decision-making for them. How can this be anything but a slippery slope? Where, in the Scientism of Comte and Croly, the Progressives and New Dealers, in the central planners, is there room for arational or even irrational behavior? If there is none, then I think we can safely assume their descent down the slippery slope even if they don't intend it; if not now, then later.

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Thursday, January 04, 2007

Random thoughts on minimum wages

Given that the minimum wage is going to be hiked soon, I was thinking about what other levers work in conjunction with it. Tyrone writes that the minimum wage is a good program that promotes self-help and therefore reduces the amount of transfer payments generally. I reply that almost every program could be justified on those grounds.

Rush Limbaugh is the annual generator of a couple of simplistic arguments:

1) If raising to $7.25 is good, why not raise it to $20? I'm not sure how clearcut the case is at $20, but let's tell Rush, heck, why not $100? At that point, we can clearly say, "because they aren't worth it. Nobody else is." Okay, now we have a negotiation: everyone can agree that even the laziest or least knowledgeable employee is worth between $0 and $100, so the answer is where exactly to draw the line. The economic theorist's answer is to set wages equal to marginal output. The problem there is that we really don't know what it is. Not knowing is not a good argument for either raising or standing pat.

2) Rush's other argument is that some jobs will be lost. That sounds good, and comes directly from Econ 101, but we generally learn by Econ 401 that a number of assumptions were made to arrive at many of Econ 101's lessons, assumptions that don't hold in the real world. Those include things like perfect knowledge and competition.

Still, people arguing for minimum wages must also acknowledge that many people are employed by small businesses (about 11% were employed by businesses with less than 10 employees in 2003 (15.9 million (census stats) of 146 million were employed that year (more) and 25% more in the range between 10 and 99 employees (referenced here)), and that some of those small businesses operate on razor thin margins (I think 2-3% profit is the norm for restaurants). Suddenly, you increase their major cost by 40%. That's a relative advantage to large employers, so don't let me hear you whine about Wal-mart taking jobs while simultaneously asking for yet another pro-large business policy.

But I think I spy another puzzle:

Given that only about 2-3% (the percentage varies) makes the minimum and about 2-3% more make wages between the current and proposed minimum wage (EPI says that 5% of the employed workforce makes less than $7.25/hr). That means that 97% of businesses pay more than the legally mandated minimum, proof enough that the overwhelming majority of businesses don't screw their employees, that they compete for employees and pay fair wages. Overnight, that number would drop from 97 to 95% (though most will obviously remain compliant by raising wages).

Of course, this says nothing about the number of people who want jobs but can't have them because their skills and the demand for them are such that they would earn less than minimum. They simply aren't allowed into the workforce, thus letting everyone in favor of a higher minimum wage pat themselves on the back for helping 5% of the workforce without having to acknowledge the anonymous unemployed that were harmed by the change. If you're first thought is not, "Oh, well, screw them," then perhaps we can agree that this is yet another argument against utilitarianism?

Some notes about the demographics of the minimum, i.e. wage vs. age: Do you think, as Rush does, that it's mostly teenagers making it? EPI says that 80% of those making minimum wage are adults (they define it as anyone over 20). I would be more interested in knowing how many of them are working their first job.

There is an argument in favor of the minimum wage that says that employers ought to hire people and then invest in training them (up-skilling) to make them worth (i.e., earn) that wage. However, there is no guarantee that they will ever get to that level of skill, or that they will stay on with the employer who trained them when they do (thus, the argument overlooks two market failures, which would be enough in some circles to doom it, but nobody scrutinizes policies for market failure-like mechanisms). Employers thus take a risk on inexperienced employees. How much will they risk? That depends on the potential cost. Given two employees, one who costs more to gamble and the other less, the employer will be more likely to gamble on the cheaper one. The same is true in time, too: today, recruits cost less to gamble on than they will after the minimum wage is increased.

The safety net here is that employers can let most of these workers go at will. That is, if the gamble is starting to look bad (remember: when they are first hired, they all look the same, but employers ought to be able to judge results within a few days or hours), they can fire them and try another one. If you remove that safety valve, employers will take even fewer chances, since this effectively increases the cost of the gamble (because you will be stuck with a bad employee until he quits).

Employers as law consumers are going to be willing to tolerate a mandate for either an increase in wages or an increase in job security, but not both. We have chosen wages over security.

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Friday, December 15, 2006

Electric Utility economies of scale

I have been trying to get this right, so this may just be another unsatisfactory article in a series (others here and here).

Let's suppose that in the late 19th century, you are using kerosene to light and coal or some other fuel to heat your house. In comes Mr. Tesla and his alternating current and Mr. Edison with his electric lamp. Suddenly, you are able to get the same benefits at a lower price. In a complete analysis, we might have to account for the energy required to refine the kerosene, and the resources required to mine the coal and oil in order to get a complete comparison, including externalities, but they were probably roughly equivalent.

The big advantage there was the price, and that was made possible by economy of scale of using large generators and large distribution networks. By economy of scale, I mean that the cost of producing your consumption plus that of your neighbors was lower when using one large generator than each of you using a small generator. A small generator would cost you not only the fuel, but the upkeep and depreciation, both of which are buried in the price of retail electricity.

Over the intervening years, however, we began using the electricity for more than just the light and heat. The number of variety of appliances exploded; it is thought that the small electric motor was as important to the late industrial revolution as the steam engine was to the early revolution since it freed workers from the line and allowed them to be organized in different ways. Small appliances were thought to free people - especially women - from the drudgery of household work, since now machines could wash, dry, wash dishes, store large amounts of perishable food and eliminate the need for a daily trip to the grocery store, etc. The television became the primary form of entertainment, replacing the local pub, lodge, or club.

At some point, then, the economy of scale exploded to more than just a simple replacement of what had gone before (light and heat). Huge generation capacities were built and then overtaken, forcing utilities to build ever larger plants farther from the cities that use the power; transmission systems became intercity and then interstate; and the cost of electricity fell as never before as the utilities, with their high fixed cost of capital and low variable cost, sought to pay for the capacity rather than the actual marginal cost of power delivery.

At last, it has gotten to the point where the transmission facilities are sometimes several hundred miles away, and the system is built to run at high capacity so that the heat and line losses are now the overwhelming feature of the system. The plants run mainly on coal and nuclear fuel, both of which create enormous externalities. There is now a diseconomy of scale: many smaller plants and shorter, less complex distribution systems would be more efficient than the behemoths now operating, but it would force us to grapple with the pollution, noise, and infrastructure to transport fuel in and waste out.

How did it get this way? Where were the regulators?

The problem is that the regulators helped make it this way, contra Kos. Just as the electric utility business was getting started, the main player asked to be regulated. Samuell Insull worked with Nikola Tesla to create the industry as it exists today. At the time, Tesla invented a generator that created the alternating current electricity while Edison was still trying to sell everyone on direct current electricity. The problem with direct current is that you lose power to line losses, so that over very long distances, there is very little power left. To get enough electricity down the line for the end user, you have to elevate the voltage at the near end to dangerously high levels. That meant that the brightness of your lights and the safety of the system depended on where you were relative to the generating plant. Tesla's breakthrough idea was that alternating current was a more efficient way of moving electricity over long distances because you can use transformers to increase and decrease the voltage. Power equals voltage times current, and power lost as heat equals current times line resistance squared. To maximize power delivered as a percentage of power generated, run the voltage on the line high so the current and therefore line loss is low, then use transformers to drop the voltage at the user end to something safer. From a safety standpoint, it would be better if you had low voltage direct current in your house, but from an efficiency standpoint, it would be better if you had a large AC generator supplying all of the houses.

Insull saw the advantage of Tesla's system, commercialized it, and began building or taking over distribution systems. In the popular literature, he is characterized as becoming concerned over the possibility that someone might monopolize the electricity industry. It sounds very altruistic to be so concerned with the plight of others, but it must be emphasized that he volunteered to become a regulated monopoly rather than a state-owned industry. With the cooperation of the state, he eliminated any potential competition (along with a great deal of real competition). In most states, the mechanism by which this is accomplished is not a clause which says, "A monopoly is forthwith granted to ...", but rather by a clause which rather innocuously states something like (from the New Mexico Statues Annotated, 62-9-1)
A. No public utility shall begin the construction or operation of any public utility plant or system or of any extension of any plant or system without first obtaining from the commission a certificate that public convenience and necessity require or will require such construction or operation. This section does not require a public utility to secure a certificate for an extension within any municipality or district within which it lawfully commenced operations before June 13, 1941 or for an extension within or to territory already served by it, necessary in the ordinary course of its business, or for an extension into territory contiguous to that already occupied by it and that is not receiving similar service from another utility. If any public utility or mutual domestic water consumer association in constructing or extending its line, plant or system unreasonably interferes or is about to unreasonably interfere with the service or system of any other public utility or mutual domestic water consumer association rendering the same type of service, the commission, on complaint of the public utility or mutual domestic water consumer association claiming to be injuriously affected, may, upon and pursuant to the applicable procedure provided in Chapter 62, Article 10 NMSA 1978, and after giving due regard to public convenience and necessity, including reasonable service agreements between the utilities, make an order and prescribe just and reasonable terms and conditions in harmony with the Public Utility Act to provide for the construction, development and extension, without unnecessary duplication and economic waste.
So, without defining "public convenience", "public necessity", "unreasonable interference", "unnecessary duplication", and "economic waste", all competitors must stand in front of the public utility commission and prove that their new plants, systems, or extensions are necessary and convenient, but don't interfere, unnecessarily duplicate, or waste. Invariably, they fail the tests. Further, since any competition is unnecessarily duplicative (what is necessary duplication?), potentially economically wasteful (sometimes they go out of business), and probably afoul of the other provisions, it's unlikely that you could ever find competition to be lawful.

Other actions by the state over the past 100 years have only strengthened the power of the electric power industry. In the Depression, Roosevelt eliminated the nascent wind power industry by introducing the Rural Electrification Administration (REA). He also put government directly into the market by starting the Tennessee Valley Authority (TVA). These two reinforced the economy of scale, overbuilding, and the interdependent network architecture of the industry. After World War II, the Department of Energy was created to both promote and to regulate nuclear power, a clear conflict of interest which led them to first convince utilities in the 1950s that nuclear was the safe way to expand in the post-war boom, and then to change the requirements and increase the prices after the utilities made the commitment. Later on in the century, when it was thought that all this coal-generated power was fouling the air and water, Congress solved the problem with a nod to the interlocking constituencies of the coal-fired power generators, Eastern coal mines, and coal miners unions, requiring a technological solution to the problem (flue scrubbers) rather than allowing them to choose the low-cost option (low-sulfur Western coal), keeping the older and less efficient plants online, and ironically resulting in more sulfur dioxide emitted than if they had chosen a more market-like approach (the one that finally surfaced in the 1990 act, with its Coasian cap-and-trade sulfur market). Even more recently, we saw the nearly incredible result of California's pseudo-deregulation, in which the state left its role as referee and entered the market as a player. California became the middleman between the producers and the consumers, artificially held consumer prices down while demand soared. This led to rapidly mounting costs and eventually to rolling blackouts. Since the difference between the price and the cost was born by the state, they pumped millions of taxpayer dollars into Enron, and then had the chutzpah to blame the free market!

I hold out the hope that the decentralizing capacity of solar and wind energy is destabilizing to these entrenched political-industrial interests. Thus I read things like this interview (hattip: Mutualist Blog) with Travis Bradford, author of Solar Revolution: The Economic Transformation of the Global Energy Industry with hope, but also with a good deal of skepticism. Typical of all such journalism, the Alternet interviewer and commenters commend Bradford for sounding like techno-optimist Amory Lovins and not like Doomslayer Julian Simon, of whom they have probably never heard except in disparaging tones. Like Lovins, et al, in Natural Capitalism, Bradford seems to be arguing that technorevolution will happen and should happen simultaneously. To the extent that something will happen, why agitate for it? It's like encouraging people to breathe. To the extent that it should happen but might not, I see little in the interview to indicate that Bradford or many of the commenters are aware of the technical problems with solar. The "thoughtful" solution to the drawbacks of any one solution (wind, solar, geothermal) seems to be that we will have an integrated system of geothermal and wind to provide the base generation (and probably nuclear and coal for at least the next 100 years), with additional wind and solar to provide the peak generation, but this doesn't bring forth visions of an environmentally benign, decentralized or anarchist utopia.

For one thing, there is the problem that alternative energy is only "on" for part of the day. This means that you need some way to obtain power at night, when it's cloudy, or when it's not windy (if you're depending on wind). The two normal solutions for this are batteries and grid tie. Between the chemicals and processes required to produce polysilicon and other photovoltaic architectures, and the chemicals used in batteries, these aren't exactly the environmentally benign technologies we've been led to believe. The Alternet commenters mention Copper Indium Gallium Diselenide (CIGS) - what are the chances that those are surface deposits that can be mined in an environmentally and democratic way and that they don't require vast quantities of caustic chemicals to process? Then there is the problem of grid tying: yes, if you run a standalone system (in the neighborhood of $50-100k for the average household, with battery and PV cell replacement every 10-30 years), you don't have to coordinate with anyone else. For us mere mortals, grid tie is a less expensive alternative. It also requires a massive effort to centrally coordinate the decentralized grid: standards, inspections, licensing, legislation, etc., plus there is the fact that it requires the existing, centralized generation and distribution system to operate. Kirkpatrick Sale thought the electric grid was too large, too complex, and therefore too fragile back in 1980 when a few central utilities were tied together, so just imagine how much more complex when every house is tied to it and we are all billing one another for generation and use.

There are two passing references to Howard Hayden's Solar Fraud; Why Solar Energy Won't Run the World: one says that he assumes prices stay constant, the other that he has ties to the nuclear power industry. Neither addresses his criticisms, which I will try to summarize in a future post.

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