Monday, August 18, 2014
I’ve been reading up on insider trading recently (as part of a project on what happens when government applies price instruments to limited-liability firms), and it’s tough to find academics who think trades by insiders should be universally prohibited. This is odd not least because every modern economy that I know of in fact bans insider trading. What gives?
(UPDATE 8/20: Bainbridge points you to some much more thoroughly thought-out answers here: http://www.professorbainbridge.com/professorbainbridgecom/2014/08/why-is-insider-trading-illegal.html)
The academic defense is fairly straightforward, as I understand it. For one (per Carlton & Fischel), it allows managers to hedge, which should help to make them more risk-seeking, reducing the need for other forms of costly incentive pay. Defenders also still sometimes say that inside sales can send signals to the market, which is potentially useful information that would otherwise be unavailable or slower to arrive (Henry Manne is the go-to cite for this one).
Well, sure, maybe. How costly would insider trading be as an incentive-aligning device, though? The costs would be off the books, which would look nice to rationally ignorant shareholders. But the costs could be quite large.
As a Columbia guy, I tend to agree with John Coffee that the big cost here is the lemons problem. If I know the manager *could* be trading on bad news known only to her, I discount the value of the stock; the fact that she is willing to sell even at my discount price tells me the stock really is a lemon. (Sung Hui Kim also offers a recent spin on this point.)
Carlton & Fischel acknowledge the lemons argument, and they say in response that traders always know that there is someone better informed than them, and yet this does not seem to paralyze markets. Jon Macey also makes a version of this point. I’m not sold.
Thursday, August 14, 2014
We were discussing global warming at the Indiana Law and Economics Lunch, and the curious path of world temperatures. From NASA data, which is standard, the pattern is that temperatures rose from 1980 to 2000 and then stopped increasing (but stayed high). This doesn’t necessarily mean we can forget global warming as a problem, though--- something I hadn’t thought about before--- because maybe the continued high temperatures will cause big problems even if temperatures don’t rise any more. It could be, for example, that Greenland’s ice will melt and raise the sea level. Whether that would happen or not, if the temperature stays constant, I don’t know.
But this implies current suggestions for global warming policy are totally misguided.
If temperature has stalled, but we still have a big problem because of continued high temperatures, then carbon taxes, cap-and-trade, etc. won't help in the slightest. Restricting carbon output is only good for keeping the temperature from rising, and if it's not rising any more, that’s addressing the wrong problem. Rather, we'd need to actually REDUCE the amount of carbon in the atmosphere (if carbon was indeed the cause of the 1990's warming, and it has stopped only because of negative feedback via clouds, etc.), which absolutely nobody proposes. Rather, if we need to actually reduce the temperature rather than stop it from increasing, the only solution would be climate manipulation via putting some kind of particulate in the atmosphere.
The Supreme Court decided in EPA vs. Massachusetts in 2007 that carbon dioxide was a pollutant and needed regulating, regardless (if I remember rightly) of whether the regulation would make any detectable difference to the global temperature (or the Massachusetts seashore, the plaintiff's alleged source of injury). Suppose the global temperature continues to stall for 30 years, or even decline. Would that affect the Supreme Court decision? Or would it be like with Brown v. Board of Education, where the experiments with black and white dolls and self esteem wasn't really the key to the holding?
There has been so much clamor about the Environmental Protection Agency's introduction of a proposed rule for regulating greenhouse gas emissions from power plants, it's hard to shout above it all. And yet, not much has really been added to the conversation from a policy point of view, and not much can be said. The rule sets an emissions reduction target for each state, but is very vague (or, in EPA's words, "flexible") about how states can achieve those targets. There has been so much sky-is-falling nonsense that one loses sight of the fact that the rule doesn't actually do all that much. The rule provides neither much guidance nor much admonition. Under this part of the Clean Air Act, states will be required to submit for EPA approval State Implementation Plans that set out a regulatory scheme by which they intend to carry out the broader mandates set out by EPA. The required emissions reductions are the product of complicated formulas, but have their ultimate root in emissions rate standards for coal-fired power plants, which were then adjusted for a number of political factors, like individual state efforts to reduce emissions before this rule. The vagueness is intentional. Former EPA general counsel Roger Martella characterizes EPA's posture towards states as "any way you want to reduce greenhouse gas emissions, we'll find a way to make it work." EPA is bending over backwards to let states do whatever they want to do, at the price of perhaps accomplishing too little. Charles Komanoff of the Carbon Tax Center estimates that the implicit price of emitting carbon dioxide under these targets is about $2.15 a ton. That's trivial.
My friends at Element IV, a consulting group founded by a former oil executive and a former Sierra Club lobbyist (!), are not optimistic about the survival about this much-ado-about-not-much rule. They cite legal challenges that were filed within moments of the publication of the rule.
Despite the disappointment with the ambition of the rule, this rule is important for several reasons. Although Bailey and Bookbinder minimize the significance of what this rule can accomplish -- "give the President something concrete to say at the Paris climate talks next year," and "claim a political legacy beyond that" -- there is real game-theoretic significance to being able to say something "concrete." I noted a few years ago that international climate negotiations are extremely fragile, and that signals of cooperation were very important in preventing the unraveling of agreements. This greenhouse gas rule does allow leaders from other countries, if they are so inclined, to be able to say to skeptical constituents that the United States has done something. Not much, but something. So the facile dismissal that we should do nothing because anything we do will be canceled out by the fact that "China" -- whatever they mean about a nation of 1.3 billion people -- will do nothing, is far too simplistic. Like it or not, the nature of climate negotiations is going to have to be the taking of unilateral steps that are necessary, but not sufficient conditions for international agreement to take place.
I would like to see a carbon tax, too, but little steps will have to do for now.
Tuesday, August 12, 2014
I wish to call attention to a paper written by my co-blogger David Gamage, Analyzing the Optimal Choice of Tax Instruments: the Case for Levying (all of) Labor-Income taxes, Value-Added taxes, Capital-Income Taxes, and Wealth Taxes. His argument is that although different taxes may be distortionary, there are some real-world issues with the purely theoretical treatments as a basis for policy. Enforcement is one of those pesky real-world problems.
I see only one problem with wealth taxes: international tax havens. Otherwise, it seems
straightforward to tax wealth. Am I wrong? If not, then it is true that wealth taxes could be a central part of Treasury diet, if some international coordination could be achieved. That doesn't seem politically crazy to me.
It seemed that for a time, there was this notion that using the tax code to implement policy was a dangerous and wrong-headed thing. That concern seems to me to have disappeared entirely. It would seem to make sense, however, to reduce the number of objectives of tax law. I have just two in mind: revenue raising and wealth distribution. Hence, a wealth tax.
Friday, August 8, 2014
I have been struggling to figure out what to write about my fallen colleague, Danny Markel, the Sandy D'Alemberte Professor of Law at the Florida State University College of Law. He was shot in his home on July 18, and died later that night. The assailant has not yet been identified.
I could acknowledge Danny's contribution to criminal law and the legal academy. But that seems too easy, and I would guess that although he did not peddle himself as law and economics scholar, his work was already appreciated in these circles. What I found most human about Danny was not his sizable commitment to intellectual life, but his commitment to his two children. Danny's children were slightly younger than our children, and they shared a daycare with our younger child. Danny would do anything for his two sons. That sounds like a cliche, but often when I dropped off my own son at daycare, I would see him there, sitting at a table full of children, singing songs or sharing breakfast. He taught me a lot, too, like Brian, but I think I will try to remember above all else that mental picture I have of him, not a giant of a scholar, but just a grown-up scrunched into a children's chair, making himself small so he could truly be there with his children.
Thursday, August 7, 2014
In an earlier post I showed how to analyze the Obamacare state subsidies of the Halbig decision using game theory (or, if you, like, how to analyze the earlier Health version of the bill that everybody agrees would have ruled out federal subsidies for 4 or 6 years--- I’ve seen both numbers). Game theory thinking led me to another angle on the case.
The Halbig case, with its issue of what it means for an insurance exchange to be “established by a state,” brings up the general question of how to decide whether a phrase in a statute is enough of a mistake that a judge should take action and change it. Sometimes it is easy--- if the bill says that “3 mtrillion dollars” shall be spent on a bridge, everyone would agree that it was meant to be 3 million dollars, even though it sounds more like 3 trillion.
Here is one test. The judge should ask himself what the legislature would have done if someone had pointed out the phrase and asked them to re-vote on it as it was worded.
Wednesday, August 6, 2014
Professor Gamage and I have been blogging on the law and legislative history of the Halbig Obamacare case, but the political economy is interesting too. Our governor in Indiana is Governor Pence, a conservative former U.S. Representative with a lot of talent and ambition (and a legislature controlled by his party). One of my law-and-econ colleagues said, “My guess is that Governor Pence’s refusal to set up an exchange will last only as long as his presidential ambitions.”
If Indiana residents can’t get Obamacare subsidies because there’s no state exchange, as Halbig says, then there are going to be some angry voters here! But some people will be happy too, because if people in Indiana don’t get the subsidies, Hoosiers don’t have to comply with the individual or employers mandates to buy health insurance. So how does the political calculus work out?
Monday, August 4, 2014
The topic of arrest rates came up in my church small group yesterday, and I found an interesting paper. According to Brame et al’s 2014 article, by age 23 49% of black men have been arrested and 38% of white men. The 2010 FBI stats show 2.2 times bigger arrest rate for black men than white. So it must be that while blacks and whites have about the same percentage of men ever arrested, many more of the blacks who are arrested have multiple arrests. Incarceration statistics bear this out; the fraction of black men incarcerated is far higher than for white men. I wonder how many of the white arrests are for drunk driving or disorderly conduct or wife beating?
It was interesting to me that this article, in a top criminology journal, was really just figuring out summary stats from a well-known national sociology dataset. That's certainly worth doing.
Note that having an arrest on your criminal record does not prevent you from obtaining employment. If it did, over 38% of middle-aged men in America would be out of the labor force for that reason.
Demographic Patterns of Cumulative Arrest Prevalence by Ages 18 and 23, Crime and Delinquency, 2014, Robert Brame firstname.lastname@example.org Shawn D. Bushway Ray Paternoster Michael G. Turner.
Wednesday, July 30, 2014
Eric Rasmussen makes interesting points below. In all honesty, I’m impressed and somewhat persuaded by some of the arguments that commentators are now raising. Although I ultimately don’t find the majority’s reasoning in Halbig to be persuasive, I think the majority makes a far better argument than anything that was written until very recently. With apologies for being frank to the point of rudeness, I thought the arguments originally made in support of the majority’s position to be so poorly reasoned as to be jokes. If the arguments being made today had been made years ago, I would have taken these arguments far more seriously.
This brings us back to why I don’t think the inquiry here should be based on some narrow notion of legislative intent. There are numerous reasons why courts should defer to agency rulemaking. Agencies are much better positioned than courts to evaluate a regulatory framework as a whole and to interpret the language of a statute so as to make that language workable in light of implementation and administrative concerns.
Again, the State government officials who decided to go with the federal Exchange infrastructure rather than creating Exchanges on their own had no reason to expect that this decision would have implications for whether State citizens would be eligible for the premium tax credits. If allowed to stand, the majority’s decision in Halbig would create chaos and very real hardship. It’s not clear who would benefit politically from this chaos and hardship, or whether the ultimate effect would be to undermine or strengthen Obamacare. But it seems undeniable that adopting the majority’s position today—after both States and individual taxpayers have made important decisions based on an expectation that premium tax credits would be available on the federal Exchanges—would create hardship and disaster that no one intended.
Adler and Cannon deserve credit for raising an innovative argument. In a draft of one of their writings on the topic, they write: “We were both surprised to discover this flaw in the law, and characterized it as a ‘glitch’”. (Jonathan H. Adler & Michael F. Cannon, Taxation Without Representation: The Illegal IRS Rule to Expand Tax Credits under the PPACA, Case Research Paper Series in Legal Studies, Working Paper 2012-27, July 2012, at 4.) They then say in a footnote (id.) that they “were first made aware of this aspect of the PPACA by a presentation by attorney Thomas Christina at the American Enterprise Institute in December 2010. See Thomas Christina, What to Look for Beyond the Individual Mandate (And How to Look for It) (Dec. 6, 2010), available at: http://www.aei.org/files/2010/12/06/Christina20101206.pdf.”
Note that this presentation is dated December 6th, 2010, over eight months after the legislation was signed into law. The draft Regulations interpreting the statutory language in question were already well developed by December 2010, and many States had already decided whether to establish their own Exchanges or whether to instead rely on the federal infrastructure. Moreover, this date is when Adler and Cannon first heard the argument. Again, I don’t remember when Adler and Cannon first took to radio and print media to start popularizing the argument, but it was clearly after December 6th, 2010.
The situation today might have been different if the arguments that are now being raised had been articulated years ago, when the Regulations in question were being written and when the States were deciding whether to establish Exchanges on their own. But, it is just plain ridiculous to argue that the unambiguous plain reading of a statute requires interpreting the statute in a way that almost no one thought was even a possible interpretation only a few years ago.
I continue to believe that the best reading of the plain language of the statute is that premium tax credits are to be available on the federal-run Exchanges. Yet, even if I am wrong, this is clearly an instance where the courts should defer to agency rulemaking.
We've got a discussion going. Excellent! In “The Problematic Halbig Decision: Why “Intent” is Too Narrow an Inquiry”, David Gamage tells us that he and others who were making regulations based on the new statute didn’t even hear mention of the possibility that non-participating states wouldn’t get subsidies for many months. That’s what the House oversight report says about Treasury at the time too. So the Executive branch didn’t see any problem till it was pointed out to them from outsiders.
This evidence cuts both ways, though. Notice that nobody says that Treasury officials read the subsidy clause and said, “Hey, there might be a problem because that language seems to exclude subsidies for federal exchanges.” Why, when so many people now see a problem? My guess is that they were working frantically to implement the bill (remember the federal exchange rollout fiasco and all the deadline changes) and not looking for new problems.
Let’s go back to intent , though. As a bill progresses, clauses are inserted to please this and that group, and often to get just one legislator’s vote. The people who draft the final bill may know very well what they’re doing, and hate the result compared to the draft-before-final, but insert the obnoxious clause knowingly because they need it to pass the bill. They may then employ a useful bureaucratic trick: put the clause in the document to get agreement, but ignore it in implementation and hope the people who pushed for it don’t notice. (I’ve had that used successfully against me myself more than once!)
Tuesday, July 29, 2014
I have recently read an interesting paper, which was just published in Psych Science called In Search of Homo Economicus. The paper takes an individual difference approach to the concept of rationality and demonstrates consistent behavioral differences among people across various behavioral and personality measures. While the classical approach to the study of rationality is aimed at finding the situations in which people deviate from what rational choice approach would predict, the described paper attempts to identify who are the people who deviate from rationality and who are the people who follow the prediction of rational choice.
The researchers have used a combination of dictator and prisoner dilemma games, as well as various personality, intelligence and demographic measures on a sample of Tokyo residents (which is not argued to be representative). They found that 7% of their sampled participants are Homo Economicus (HE) who have kept all of their endowment in the dictator game, and that 8.7% of the participants are quasi–Homo economicus (qHE) who gave away only 15% of their endowment. Moreover, the HE participants were found to be smarter, more individualistic and more likely to engage in long-term investments.
As suggested in some of my previous posts, this approach holds a very promising direction for the law and behavioral science movement. One example, is the idea of differential regulation regarding the usage of monetary measures vs. non-monetary measures [see for example my paper on Intrinsic and Extrinsic Compliance Motivations]. One can speculate that in some legal contexts we might expect a higher ratio of HE and qHE (e.g. corporate taxation) who might then receive a different treatment relative to regulatory contexts with lower ratio of HE and qHE (e.g. Transportation law, Labor law). Naturally, these last examples require further empirical investigation and are not part of the described paper, however, they definitely show potential advantages of an individual difference approach to bounded rationality, an approach which is definitely not common within the legal scholarship.
At the same time, a word of caution is required when moving from theory to policy in the context of individual difference. In contrast to what is sometimes being understood, even very stable differences between people do not mean that these types of people care only about money while others don’t care about it at all. We need to recognize that the differences are of magnitude and hence the policy requirements that followed are important but still relatively limited.
I was about to write a comment in response to Eric Rasmusen’s post below, but then I thought I’d make use of my privilege as a blog editor to reply through a post of my own.
I think framing the issue in Halbig as a question of intent is to view the dispute far too narrowly. As I noted in my prior post on these cases, I accepted a position at the Treasury Department after the passage of the Obamacare legislation, and I worked on the Regulations interpreting the tax provisions of Obamacare as a primary focus of my position.
Importantly, I did not hear anyone even mention the possibility that the Obamacare legislation could be read to deny tax credits through the federal Exchanges until months after I arrived at Treasury. I surrendered my Treasury computer and e-mails when my position ended, so I cannot look up the exact date. But I remember vividly when I first heard this argument. A senior political appointee I worked with had heard Michael Cannon present his argument on a radio show and asked me and others working on these issues what we thought of the argument.
Prior to that time, I had been reading the detailed language of the Obamacare statute on a daily basis while working on the early draft of Regulations for the premium tax credits (IRC Sec. 36B), the individual mandate (IRC Sec. 5000A), the employer mandate (IRC Sec. 4980H), and other related provisions. I had been discussing these provisions with literally hundreds of other lawyers and government officials, many of whom were also poring over the statutory text of these provisions of Obamacare. After first hearing Cannon’s argument , I asked the other lawyers and officials I had been working with whether they had heard anything like this argument before. None had. Everyone I spoke with was completely surprised upon first hearing Cannon’s argument.
How is this possible? If you read the language of Sec. 36B out of context, Cannon’s argument seems obvious. Many commentators agree with Cannon that his reading of the text is plainly correct. And yet this reading never occurred to me or to numerous other lawyers or government officials before Cannon began arguing for his reading on radio and (later) in print.
I’ve explained elsewhere how the plain language of Sec. 1311 defines “Exchanges established by a State” as a defined term-of-art. I thus consider Cannon’s argument to be based on a sloppy reading of the statutory language, because he ignores that the statute defines the terms he wants to read in a manner inconsistent with the statutory definitions.
But let’s imagine that I’m wrong. What if I’m misreading the statutory text? Numerous commentators have noted that we lack decisive contemporary legislative history. Should we thus despair of determining the “intent” of Congress?
Perhaps so. However, whatever the intent of Congress, no one claims that the States who chose to go with the federal Exchange infrastructure thought that they would be denying their citizens the premium tax credits by doing so. This argument simply did not factor into the state-level debates about whether to establish Exchanges on their own or to instead rely on the federal government Exchanges.
We thus return to the fact that Cannon’s argument (which formed the basis of the challenges in Halbig and related cases) was developed after the fact. Not only was this argument developed after the passage of the Obamacare legislation. But, more problematically, this argument was developed after important real-world actors made major decisions with far-reaching implications based on reading the language of the statute in a manner contrary to Cannon’s arguments. When the first states were deciding whether to establish their own Exchanges or instead to rely on the federal government, no one was arguing that this decision might have implications for whether the states’ citizens would be eligible for premium tax credits.
This “course of performance” evidence should easily trump any half-hearted attempts to directly divine legislative intent.
Monday, July 28, 2014
A lot of the discussion of the Halbig Obamacare case about federal vs. state insurance exchanges is about the intent of Congress. The problem is that people are thinking of different things when they think “intent”. Many people think it’s ridiculous to say that Congress intended to use subsidies to induce states to establish insurance exchanges, because if you had asked a random member of the Democratic majority whether he’d thought of that, he’d say it never entered his mind. I completely agree with that. But it’s not relevant, because it’s also true that if you asked the member about virtually *any* detail of the bill, he’d say it never entered his mind. We know what he voted for, but even that we know better than he did! He didn’t read it, after all.
Friday, July 25, 2014
Following up on my previous post on law reviews, and inspired by some posts at the Business Law Prof Blog here and here, I thought I’d share a modest proposal for how we might move toward what I would consider to be a better world.
I agree that there are significant advantages to the law review submissions process, as compared to full peer review, in terms of the speediness of reviewing submissions, preventing the dominance of the field by entrenched senior scholars, and otherwise allowing a wider variety of voices to be heard. In particular, for legal scholarship aimed at influencing appellate courts (read: law clerks), student editors are probably better at selecting the most potentially influential pieces than would be faculty.
That said, I think it ridiculous that student law reviews as they are currently structured dominate the legal publishing world. This is probably more of a problem for some subfields than others. I think the dominance and current structure of student law reviews is seriously holding back the development of legal scholarship in my field of taxation.
Unfortunately, most of the existing peer-reviewed legal journals have significant restrictions in terms of length and style. I think there is value to the law review style and I’d love to see more peer-reviewed journals accept traditional law review style publications. My ideal would be for there to be a bunch of journals like the Tax Law Review, except made fully peer reviewed.
How might we evolve toward a system with more peer-review publishing opportunities for traditional-style legal scholarship?
I strongly urge student editors at law reviews to start by creating one peer-reviewed issue a year. The remaining issues of the journals could continue with their existing submission processes, thereby maintaining the advantages of the current system. But journals could accept submissions for their peer-reviewed issue off cycle. I imagine that many scholars would then try to submit to one or more peer-reviewed journals prior to the start of the submission cycles, with the intent of submitting through the general non-peer-reviewed process come February or August, for pieces rejected through the peer-reviewed process.
Note that student editors could retain control and primary decision making authority over what pieces are accepted for the peer-reviewed issues. As I understand it, all that peer-review requires is that the editors solicit formal reviews of scholarship before making a decision and that the decision be based partially on these formal reviews.
A number of top law reviews already solicit faculty reviews of scholarship. I have been asked to review pieces on many occasions. But this is generally done informally and inconsistently. I understand peer-review as requiring a consistent and formal process for soliciting review letters and incorporating these letters into the process of deciding what pieces to accept.
Particularly for secondary journals, I expect that making one issue a year peer-reviewed would greatly improve the quality of the submissions received and published. Currently, I send most of my best work to the Tax Law Review for exclusive submission. I would happily submit to peer-reviewed issues of secondary journals focusing on tax or business law if such existed.
If any student editors read this, I would be very happy to work with you to help in establishing a peer-reviewed issue of your journal. Please don’t hesitate to contact me if you might be interested.
Myself, I don’t think blind submission would have much effect on changing outcomes. But I do think that all journals should adopt blind submission in order to increase the appearance of fairness. I’ve served as a referee for a number of peer-reviewed journals that rely on blind submission. I think in essentially every case that I either knew who the author(s) of the papers I was reviewing were or that I quickly found out who the author(s) were as an unavoidable result of the few minutes of background research I typically do to assess the uniqueness of the contributions of the pieces I review. Tax is a small enough field, and we generally post papers in publically available fora and/or present papers at conferences well before submitting for publication.
I favor blind review not because I think it will significantly change outcomes, but rather because I think the small costs of blind review are greatly exceeded by increasing the appearance of fairness. That law reviews ask for authors’ CVs is just plain distasteful, in my consideration. It is undoubtedly difficult to evaluate scholarship on its quality, factoring out the biases generated by knowledge about the author. But journal editors should at least try. I’ve heard many stories that suggest that law review editors sometimes make decisions based on letterhead, CVs, and author reputation. Yuck!
Wednesday, July 23, 2014
Much of the media and blog discussion has framed the legal debate as being between (a) focusing on the literal wording of the statute, and (b) looking to broader contextual or purpovist forms of statutory interpretation. There is some truth to this. But I think the view that the literal wording of the statute supports the majority’s decision in Halbig is wrong.
Central to Obamacare are new Exchanges designed to offer insurance plans to individuals and small businesses, and premium tax credits offered to make these insurance plans affordable for low and moderate income Americans. Section 36B of the Affordable Care Act (“Obamacare” or the “ACA”) states that to be eligible for the premium tax credits, a taxpayer must enroll in a qualified health plan offered “through an Exchange established by the State under 1311.” The majority decision in Halbig thus holds that premium tax credits are only to be available through Exchanges established by a state, not Exchanges established by the federal government.
Based solely on the language above, it is easy to see why so many have thought that the narrow language of the statute supports the position reached by the majority in Halbig. However, it is crucial to understand that the term “Exchange” is a defined term in the statute. Section 1311(d)(1) requires that “[a]n Exchange shall be a governmental agency or nonprofit agency that is established by a State.”
The majority in Halbig discuss the language of Section 1311(d)(1) at length and provide numerous arguments for why they decide that this language should not be determinative. I think the majority makes a reasonable case, but I ultimately find their reasoning unconvincing. I discussed some of the reasons why in an Essay co-authored with Darien Shanske, available here.
I lack the time today to comprehensively review the majority’s arguments in the Halbig decision. But a few words of context might be helpful.
From 2010 through 2012, I took a leave from Berkeley Law to accept a position at the Treasury Department’s Office of Tax Policy. As part of that position, I worked on the regulations challenged in the Halbig and King cases. I started at Treasury after the ACA legislation had passed Congress and had been signed by the President, but I worked closely with many people who were involved in drafting the legislation.
When I arrived in Washington, most everyone was referring to the Exchanges as “state-run” Exchanges, or “state Exchanges”, or “state-established” Exchanges. Even when discussing the possibility that the federal government might need to step in to establish Exchanges on behalf of some of the states, most everyone still referred to the Exchanges as “state run or established” Exchanges. To this day, my files related to the Exchanges have the header “state-run Exchanges.” In other words, it was simply understood by everyone I met who was involved in drafting the legislation, that the phrases “state-run Exchanges” or “state-established Exchanges” were terms of art meant to refer to all Exchanges. Importantly, the structure and language of the statute is consistent with these forms of expression.
Far more can be (and has been) said on these issues. Again, I refer interested readers to my prior essay on this topic. I may write more as I have time. For now, I’ll end by emphasizing again the language of Section 1311(d)(1) setting forth the requirement that “[a]n Exchange shall be a governmental agency or nonprofit agency that is established by a State.” The provision instructing the federal government to establish an “Exchange” when states fail to do so reads: “the Secretary shall (directly or through agreement with a no-tfor-profit entity) establish and operate such Exchange within the State and the Secretary shall take such actions as are necessary to implement such other requirements.”
Ultimately, the textual question in these cases comes down to whether the language of Section 1311(d)(1) should govern or only the language of 36B. Arguments have been made for prioritizing the implications of each of these. But, in my view, any discussion that mentions only the language of 36B and not the language of 1311 is missing the heart of the issue.
Tuesday, July 22, 2014
I just posted on the DC Circuit’s 2-1 decision against the Government in Halbig, the Obamacare case about whether “an Exchange established by the State under section 1311” means an exchange established by the state, so that in locations where there is no state exchange, the individual mandate and subsidy and employer mandate won’t apply.
Nobody really could believe that the language of the statute is ambiguous, so though the Administration does help lighten our day with some humorous arguments to that effect, their main arguments are about intent. Congress could not possibly have meant to incorporate provisions in a statute that would thwart the intent of those who voted for it! Well, that’s humorous too, since it’s not uncommon for politicians to shoot themselves in the foot. Indeed, given Obama’s current ratings in the polls, one might argue that the Courts should reverse the result of the 2012 election; voters couldn’t possibly have meant to re-elect Obama, and no doubt a majority of them would now admit they were mistaken. But let’s move to where law-and-economics can be helpful to the DC Circuit when it takes up Halbig en banc, as everyone thinks it will unless the case goes straight to the Supreme Court.
In his dissent, Judge Edwards says:
[N]o legitimate method of statutory interpretation ascribes to Congress the aim of tearing down the very thing it attempted to construct…
Appellants in this litigation have invented a narrative to explain why Congress would want health insurance markets to fail in States that did not elect to create their own Exchanges. Congress, they assert, made the subsidies conditional in order to incentivize the States to create their own exchanges…
The simple truth is that Appellants’ incentive story is a fiction, a post hoc narrative concocted to provide a colorable explanation for the otherwise risible notion that Congress would have wanted insurance markets to collapse in States that elected not to create their own Exchanges….
The majority thinks it unremarkable that Congress would condemn insurance markets in States with federally-created Exchanges to an adverse-selection death spiral.
A little bit of game theory goes a long way. Here’s why Congress would indeed condemn insurance markets in States with federally-created Exchanges to an adverse-selection death spiral. It has to do with payoffs on and off the equilibrium path of a game. Or, since I’m not trying to be pedantic, with why people make threats.
Let’s use a story. Suppose Harry Reid has a choice between passing a bill saying “No state exchange, no subsidy” or a bill saying “Fed exchange OK for subsidy.” He would prefer the states pay for the exchanges, since even a small saving like that will help reduce the cost to the federal government. He’s got a majority in the Senate, so he can pass whichever bill he wants. His payoff is 10, let us say, if the federal government has to raise taxes to pay for the exchanges, and 12 if the states pay. For the states, let’s call the player “Indiana”, since it’s one of the conservative states from which Reid expects trouble. Indiana will get a payoff of 0 if the federal government pays for the exchanges, and -1 if it has to pay for the exchanges itself, Reid thinks. Reid calculates, though, that under the “No state exchange, no subsidy” bill, Indiana’s payoff will be -3, because it will lose the subsidies and that’s more important than the expense of the exchanges. To be sure, Reid’s payoff would be -20 under that bill if Indiana didn’t establish an exchange, but that would be for Indiana to shoot itself in the foot, which politicians never do. Thus, Harry Reid passes the No State Exchange No Subsidy bill, Indiana establishes an exchange, and Harry gets his maximum possible payoff of 12. Harry has refuted Judge Edwards: he has purposely passed a bill that would cause chaos in Indiana and wreck Reid’s own policy--- but only if Indiana makes a mistake.
Unfortunately, it was Harry who made the mistake. Indiana’s payoff from establishing the state exchange is -4, not -1. Harry has forgotten about the issue of principle: the Indiana conservative statehouse hates government health care even more than they love subsidies. And so Harry ends up with a payoff of -20.
The game could be expanded realistically. At the cost of some complexity, we could formally model Harry’s uncertainty over whether Indiana’s payoff was -1 or -4, making this into “a game of incomplete information.” That would just be a technical cleanup, though--- the game would behave much the same. Or, we could also add another player: the Supreme Court. Suppose Harry thinks there is some chance Indiana’s payoff is actually -4, so his No Subsidy bill would backfire. He also knows, however, that some judges, like Judge Edwards, would like to come to his rescue. Thus, we might add a move by the Supreme Court at the end of Refuse to Establish State Exchange. The Supreme Court could keep the law as is, or change it to “Fed Exchange OK for Subsidy”--- in which case Reid is back to his +10 payoff. Or, even better, the Supreme Court might choose the move, “Force Indiana to set up an exchange no matter what the statute says,” and Harry could get his +12 payoff no matter how Indiana moved. I’ll leave that game as an exercise, or maybe for an amicus brief (anybody interested in writing one on this point?)
This idea is familiar in law and economics in the form of the idea of “penalty defaults” in contract law. Professors Ayres and Gertner pointed out in 1989 that one way a judge could respond to sloppy contracts in which the parties made some clause ambiguous to try to get the courts to go to the trouble to sort it out would be for the court to pick a purposely harmful default clause to use if the parties tried that tactic. For example, if it was unclear which party would receive interest on an escrow account in a merger deal, the courts might want to say in advance that all the interest goes to the Taliban, so everybody loses. That would make them take more care with their drafting. A very recent example in another context is the case of the conservative professor who sued the U. of Iowa law school for political bias in hiring. The jury deadlocked and was dismissed, but somehow (I forget details) the judge called them back two minutes later and they were in agreement. The appellate court reluctantly said there’d have to be another trial, because though in this case it was satisfied that the jurors hadn’t had time to confer with outsiders and a new trial would be something of a waste, it was better to have a bright line rule.
Ian Ayres & Robert Gertner, Filling Gaps in Incomplete Contracts: An Economic Theory of Default Rules, 99 YALE L.J. 87 (1989).
Ian Ayres, Ya-Huh: There Are and Should Be Penalty Defaults, 33 FLA. ST. U. L. REV. 589, 597 (2006).
The DC Circuit just decided 2-1 against the Government in Halbig, the Obamacare case about whether “an Exchange established by the State under section 1311” means an exchange established by the state or means any exchange operating in that state, even if it was established by the Federal government because the State refuses to establish one. This matters because the statute says that the government can only impose the individual mandate and give subsidies after such an exchange is established. Otherwise, it can set up a Federal exchange, but can’t herd people into it by either force or subsidies.
Monday, July 21, 2014
We want to take a moment here to recognize a man who was our classmate, our colleague, our blogfather, and of course our good friend, Dan Markel. He taught us not just how to be scholars, but how to be a community of scholars.
Look, words are not enough. Let's all think about building some more lasting tribute. His family, his students, his institution all I'm sure will want to recognize the things he contributed to them. Speaking just for myself, I'd like to see us, as scholars, make something that reflects and continues what he did for us. Too soon now to say exactly what. But I'm sure many others must feel the same. Let's all give it some thought.
Friday, July 18, 2014
Thomas Piketty's Capital in the Twenty-First Century has me reviewing some old law and economics articles. Piketty is concerned with wealth inequality, and believes that it will lead to dysfunctional democracies, and perhaps a return to the near-medieval inequalities of say, France's Belle Epoque period. He drops some dark hints of the violent dystopias that lie ahead if wealth gaps continue to increase.
Piketty is right to be concerned. In societies with vastly inequalities, those with very little will have very little opportunity costs of violence, with the result that they will have a comparative advantage in violence. The rich can of course purchase security with their vast wealth, conferring upon them an absolute advantage in violence, but that will not be enough to prevent those with little left to lose from engaging in violence. Even though the poor could lose more in a violent clash, in a sense the violence will be more costly to the rich than the poor, which is exactly what the rich fear.