Bonica and Klein on Adam Smith on Reputation, Commutative Justice, and Defamation Laws @mbonica @GeorgeMasonU

Mark Bonica, University of New Hampshire, Health Management and Policy, and Daniel B. Klein, Department of Economics, have published Adam Smith on Reputation, Commutative Justice, and Defamation Laws as GMU Working Paper in Economics No. 19-24. Here is the abstract.

We explore two issues in reading Smith. The first concerns whether he thought that “one’s own” as covered by commutative justice included one’s reputation. Several passages point to the affirmative. But reputation is left out of Smith’s “most sacred laws” description of commutative justice. Moreover, so much of reputation—e.g., “Steve’s work stinks”—does not fit Smith’s description of commutative justice’s rules (precise and accurate). Our reading makes use of older terminology from Pufendorf, Carmichael, and Hutcheson distinguishing “simple” and “intensive” esteem, and suggests that the “reputation” that sometimes appears is of a simple variety (“Steve steals horses”) that potentially incites invasion of commutative justice’s three staples—person, property, promises due. On that reading the “reputation” that comes under commutative justice would be adjunctive to the three staples. Our reading also recruits Hume, who nowhere even hinted at reputation being a constituent of commutative justice. The second matter explored is Smith’s policy inclination about defamation laws (libel, slander) as they would pertain to intensive esteem. By our lights, were Smith to favor intensive-reputation defamation laws (against, say, “Steve’s work stinks”), we would have to count that as another exception made to the liberty principle. Smith’s remarks are mixed, but we think he was rather inclined against aggressive or extensive laws of such kind. (Also, we draw a parallel to patent and copyright.) Looming behind our discussion is the question: Why did Smith leave us with contrarieties and unclarity? We figure that if Smith thought that wantonly telling malicious lies like “Steve’s work stinks” was not a violation of commutative justice and, moreover, is best left perfectly legal, those are judgments that the liberal project’s great prophet would hardly want to make plain, because indifferent readers would misunderstand them and adversaries would misrepresent them.

Download the paper from SSRN at the link.

Weingast on War, Trade, and Mercantilism: Reconciling Adam Smith's Three Theories of the British Empire

Barry R. Weingast, Stanford University Department of Political Science, has published War, Trade, and Mercantilism: Reconciling Adam Smith's Three Theories of the British Empire. Here is the abstract.

Adam Smith proposed two contradictory theories of the British Empire in the "Wealth of Nations" and hinted at a third. The first view holds that the empire was created for merchants eager to establish monopolies on the colonial trade. Smith concludes that "Great Britain derives nothing but loss" from the colonies. In the second view, Smith celebrates the European discovery of the new world, opening up non-incremental increases in division of labor, specialization and exchange. The empire thus fostered the economic growth of both sides of the British Atlantic, net of the costs of monopoly. Smith's third argument is the least developed. It holds that many mercantile restrictions had a direct purpose in improving Britain's security given its more than century-long military conflict with France. How do we reconcile the incompatibility of Smith's three views of the British Empire? Smith provides too little guidance. I argue that, to understand the British Empire, we must view it from the perspective of a long-term military rivalry with France. Many of the navigation regulations were designed to advantage Britain vis-a-vis France. Smith argues, for example, that the harm to France from prohibiting trade in military stores more than compensated for the loss in wealth due to the restrictions. I demonstrate the logic of these claims using tools from modern political science.

Download the article from SSRN at the link.

The Role of Emotion In English Law and Legal Theory

For those of us who think the English are dour or lack affect,, and that English lawyers are more of the same, a new book offers to change our views. Newly published by Bucknell University Press is Impassioned Jurisprudence: Law, Literature, and Emotion, 1760-1848, edited by Nancy E. Johnson. Here is a description of the contents from the publisher's website.

In this volume of essays, scholars of the interdisciplinary field of law and literature write about the role of emotion in English law and legal theory in the late eighteenth and early nineteenth centuries. The law's claims to reason provided a growing citizenry that was beginning to establish its rights with an assurance of fairness and equity. Yet, an investigation of the rational discourse of the law reveals at its core the processes of emotion, and a study of literature that engages with the law exposes the potency of emotion in the practice and understanding of the law. Examining both legal and literary texts, the authors in this collection consider the emotion that infuses the law and find that feeling, sentiment and passion are integral to juridical thought as well as to specific legislation.

Includes an introduction by Nancy E. Johnson, Simon Stern, Blackstone's Legal Actors: The Passions of a Rational Jurist, Nancy E. Johnson, Narrative Sentiment in Adam Smith's Lectures on Jurisprudence, J. T. Scanlan, Love and the Law in Boswell's Development as a Writer in the Late 1760s, Melissa J. Ganz, Freedom and Fetters: Nuptial Law in Burney's The Wanderer, Erin Sheley, Doubled Jeopardy: The Condemned Woman as Historical Relic, Peter de Bolla, The Madness of Sovereignty: George III and the Known Unknown of Torture, Ian Ward, The Great Dramatist: Macaulay and the English Constitution. Also includes a Timeline of Selected Legal Publications, Legislation, and Events, and a Bibliography.



 
 

The First Amendment, Commercial Speech, and Adam Smith

Robert Post and Amanda Shanor, both of Yale Law School, have published Adam Smith's First Amendment at 128 Harvard Law Review Forum 165 (2015). Here is the abstract.

From the time of the New Deal, it has been black letter constitutional law that purely economic regulations should be subject to review under the deferential rational basis standard. This was the meaning of consigning Lochner v. New York to the anticanon. In recent years, however, this constitutional principle has come under severe strain because plaintiffs have begun using First Amendment protections to challenge basic economic regulations. They have sought to transform the First Amendment into a powerful engine of constitutional deregulation.

In this article, we argue that using the First Amendment for this objective contradicts the Amendment’s fundamental democratic purpose. First Amendment freedoms create a protected space in which citizens can discuss and decide how they wish to govern themselves, including how to regulate their economy. Ascribing to the First Amendment a particular social or economic policy contradicts this function. The First Amendment vests the People with the power to choose or reject policies, including policies of libertarian economic deregulation.

The Supreme Court that created the commercial speech doctrine — now the key site of dispute in this constitutional conflict — was well aware of this potential contradiction. The Court therefore defined the doctrine to protect the rights of listeners to receive information rather than to safeguard the autonomy of speakers. Some recent court decisions have lost track of this basic distinction, and have used the First Amendment to shield the undisturbed operation of the laissez faire market. Astonishingly, they have even cited Adam Smith to justify their decisions. This approach is inconsistent with the architecture and history of the commercial speech doctrine as well as with the First Amendment’s most basic role in safeguarding democratic governance.

Commercial speech advocates justify their position by arguing that the First Amendment must protect speech in the marketplace because it protects all speech, wherever and however it occurs. But this contention does not survive even the most casual scrutiny. It would lead to the absurd result that constitutional protections extend to those who commit crimes with speech, such as conspiracy or violations of the antitrust laws; to doctors, lawyers, and bankers who commit malpractice or fraud; or to the contracts that make up our commercial transactions. Speech is in fact everywhere. If all speech were to receive the same protections as public discourse, the country would become, literally, ungovernable. Were the First Amendment to extend in such an undifferentiated way, it would simultaneously authorize democratic deliberation and render powerless the government produced by that deliberation.

We argue that the First Amendment can continue to serve as the guardian of our democracy only if it is regarded as plural. Different forms of speech must receive different forms of constitutional protection. Unless this principle is clearly kept it mind, First Amendment decision-making threatens to revive the long-lost world of Lochner and to destroy the very democratic governance the First Amendment is designed to protect.

Download the article from SSRN at the link.

Adam Smith's Views on International Law and International Relations

Nicolas Hachez, Leuven Centre for Global Governance Studies, has published Views on International Law and International Relations in Adam Smith's Lectures on Jurisprudence. Here is the abstract.

This article aims to analyze and interpret the views on international relations and international law expressed in Adam Smith's little studied Lectures on Jurisprudence, in connection with the works of Grotius, Hobbes and Pufendorf. In order to do so, the article first tries to unravel Smith's account of the formation of society and government in domestic orders, understood as a complex intertwinement of human and economic factors. The article then goes on to analyze Smith's stated reasons why the seemingly universal human and economic processes leading to the formation of domestic societies and governments are failing when they are to apply in the international order. Finally, this article explores Smith's views on the idiosyncratic rules governing international relations, i.e. the Law of Nations. The conclusion of the article then attempts to formulate insights for a more harmonious international society based on Smith's premises.

Download the paper from SSRN at the link.

Adam Smith and the Judiciary

Robin Paul Malloy, Syracuse University College of Law, has published Adam Smith in the Courts of the United States, at 56 Loyola Law Review 33 (2010). Here is the abstract.

Be it on topics of property, contract, commerce, trade, tax, legal history, or other matters, jurisprudence in the United States often invokes economic thinking in providing a rationale for legal outcomes. Consequently, I wondered how often the appeal to economic thinking in the courts included a reference to Adam Smith, the founder of modern economics. This essay traces the citations to Adam Smith in the judicial opinions of the Federal Courts starting with the first two cases to cite Smith in 1796; 214 years ago. The essay provides a brief contextual discussion about Smith and the way in which he has been cited over the years. This is followed by a report on the full set of citations to Adam Smith in the case opinions of the Federal Courts and in the legal briefs filed in those cases.



Between the years 1796 and 2009, Adam Smith is directly referenced in 162 cases, and in legal briefs filed in 213 cases. Over time Smith is cited for different purposes. He is cited in case opinions dealing with a range of topics including: tax, trade, commerce, labor, antitrust, and private property. The way in which Smith is referenced over time also changes. In general, references to Smith shift over time as he goes from being an authoritative reference on matters of taxation to being a mere iconic punctuation point in the arguments of those seeking to promote free markets and laissez-faire.



The article offers quotations from case opinions and establishes a record of Adam Smith’s appearances in the Courts of the United States. Interestingly, 70% of the citations to Smith occur since 1970. Hopefully, the article will be a fun piece to read no matter what one’s specialized research or teaching area may be.

Download the article from SSRN at the link.