Reply to Klein and Clark (part 1)

I recently stumbled upon this 2010 paper on “Direct and Overall Liberty” by Daniel B. Klein and Michael J. Clark, the first page of which is pictured below. How did I not discover their excellent paper before? Among other things, the authors identify 11 types of laws, regulations, and policies and provide a general framework for determining whether, on balance or “overall”, a proposed governmental action is pro-liberty or anti-liberty by comparing and contrasting two key variables: (a) the direct or immediate effects on liberty of the proposed measure, and (b) its indirect or long-term effects. (The authors also anticipate some objections to their framework and respond to additional objections in a follow-up paper they wrote in 2012. See here.)

To the point, the main contribution of both papers is to show how, in many real-life scenarios, the direct and indirect effects on liberty of any given governmental action might diverge or come into conflict (“the possibility of disagreement between direct and overall liberty is real”), thus making it difficult–if not impossible, I might add–to determine whether a proposed law, regulation, or policy is pro-liberty or anti-liberty on balance. Despite this indeterminacy, Klein and Clark conclude that we can safely ignore the indirect effects of most governmental actions by applying the following rebuttable presumption to such actions: a law, regulation, etc. should be presumed to be anti-liberty overall whenever the direct or immediate effects of that measure are anti-liberty.

Alas, I hate to be “that guy”, but there are two logical flaws with Klein and Clark’s framework. One is that most if not all laws, whatever their subject matter, are coercive by their very nature and thus restrict liberty in one form or another. As a result, we cannot safely ignore the indirect effects of laws. The other (more significant) problem, however, is what the late great Ronald Coase referred to as the “reciprocal” nature of harms, including the harm of restrictions on liberty. In brief, even if we are somehow able to predict what the indirect or wider effects of a proposed law will be in the future (a big “if” given the problem of uncertainty), someone’s liberty is always going to be reduced or hindered regardless whether the law is enacted or not. I will further elaborate this key Coasean point in my next post.

About F. E. Guerra-Pujol

When I’m not blogging, I am a business law professor at the University of Central Florida.
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2 Responses to Reply to Klein and Clark (part 1)

  1. Pingback: Reply to Klein and Clark (part 2) | prior probability

  2. Pingback: Recap of my review of Klein & Clark | prior probability

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