It’s time to wrap up my series on “Coase and the Constitution“, which I had put on hold last week to attend to other matters. The top two citations to my work appear on the pages of the Columbia Law Review. Erin Ryan, a law professor at Florida State, shouts me out twice in his law review article “Negotiating Federalism” (Ryan, 2015, pp. 10 & 21), along with a number of other scholars who have contributed to the literature on federalism — Heather Gerken, Jessica Bulman-Pozen, Abbe Gluck, Cristina Rodríguez, Samuel Bagenstos, Bridget Fahey, Ari Holztblatt, Abigail Moncrieff, Jim Rossi, Adrian Vermeule, Mark Rosen, Curtis Bradley, and Trevor Morrison — while Aziz Huq, a law professor at the University of Chicago (where Coase himself used to teach!), simply dismisses my proposed federalism market as “implausible” in his article on “The Negotiated Structural Constitution” (Huq, 2014, pp. 1598-1599, n.10).
Alas, something is amiss. If the sundry legal scholars referred to above “agree that institutional bargaining is inevitable in the absence of clear constitutional entitlements” and “that structural bargaining takes place among the major institutions of governance”, to quote Professor Ryan (2015, p. 24), then why has my federalism market idea either not been taken seriously or been rejected out of hand? Although legal scholars’ blatant hostility toward explicit markets is to be expected — after all, as Coase himself often noted, law professors generally love to solve the world’s problems with complex, top-down administrative solutions — what is less forgivable is the utter lack of creativity in the domain of constitutional law.