tv The Permission Society CSPAN November 5, 2016 9:30am-11:01am EDT
welcome to the cato institute. i am the director for the center for constitutional studies and together with the federalist society, we are hosting today's forum. i want to thank the federalist society dean and julie who are with us today for their assistance in organizing the forum and also want to welcome those that are seeing us through c-span and our live stream audience as well. we are here to discuss an important subject, the permission society, the title of a new book by the goldwater institute tim sandefur, "the permission society: how the ruling class turns our freedoms into privileges and what we can do about it." this book documents the many ways especially since the
progressive era the presumption of liberty and freedom is at the heart of the founding principles and documents and has been extinguished in favor of the perception of government with individuals having to obtain permission to government officials before being able to act. property owners have long experienced this reversal of course and today they often find before they can make any changes in the property. it has to be from the environmental protection agency and the u.s. army corps of engineers resulting often an extremely huge expenses and lengthy delays but it isn't the use of property alone. it's starting and running a business and so much more all of
which tim sandefur covers in the book. we will discuss the issue in some detail both pro and con and i will introduce each before they speak. we love comments from the other guests and then a brief comments before we open up to you in the audience at the conference center. the vice president for litigation at the institute in phoenix arizona and as i write in the new book, his fourth magnificent plus countless articles, speeches and legal briefs he has emerged as one of the most important of and coming political and legal theorists a graduate of hillsdale college at the university school of law he
served for 15 years as a litigator at the pacific legal foundation before joining goldwater. he won important victories for economic liberty and the several states, some of which he will discuss today. he's the author of four books, the cornerstone of liberty, property rights in 21st century america co-authored with his lovely wife christina which came out earlier this year. the right to earn a living that came out in 2010, the conscience of the constitution and now the permissions for the society plus some 45 articles on subjects ranging from eminent domain and economic liberty to antitrust, copyright, slavery in the civil war and political issues issue than shakespeare, ancient greece and star trek with a range of interests those accomplishments at such an early age we are proud to have him as an adjunct
scholar. please welcome tim sandefur. [applause] >> thank you very much. it's an honor to be here. i see some old friends out there considering alan, one of the inspirations for the buck. the passage from james madison 1792 charters he starts by saying the charters and liberty have been granted by power and america has sent the charters granted by liberty. this revolution in practice of the world of may with an honest praise be the most triumphant in its history and what madison and is unlike the old documents of the english civil war of the glorious revolution, those documents all gave freedoms to the people whereas the american
revolution is founded on the principle that people are basically free and create a government through their own agreements and so forth. contrast the opening with the language of the magna carta the 800th anniversary of when you read the document it's surprising the language it uses. to all we have granted all of the liberties written out below. so it is very clear i am giving you the following freedoms and it lists out the following. that is the office at the start off by saying all men are
created equal, all people are basically free they then create the government and give certain powers much most of which are listed. what the founding fathers did is reversed the older conception of freedom and on the basis of the principle in enunciated by john locke. it's a person too poor to afford things that are free that is the argument that those are distractions from what freedom really is and that is it is not having to ask permission. it is not permission for every man to do whatever he pleases as he lives but liberty to dispose the actions, possessions and property within the allowance under which he is and they were not to be subject to the arbitrary will of another but to freely follow his own not to
have to ask permission from someone before using your property subject to the same law thalaws that applied to everyone else. there was this principle that we tend to call prior restraint. it said you have to give the government's permission before you can publish something and then this was overturned and it became the pride of british subjects that no prior restraint could be placed on a person before they published the sentiments. they might be publishe published afterwards if they committed a slander but they couldn't be required to ask permission before uttering the view. at the same principle of applies across the board.
under the british system if you read william blackstone and the commentaries it's very proud of the british subjects enjoy the religious toleration more than any other nation. it was pretty liberal by the standards of that day. but it was toleration, tolerating religious differences, giving not liberty but toleration to the people. the founders repudiated the concept. thomas paine said it is not the pain of it but the tolerance. one is the pope armed with fire in the state and the other with
indulgences. when he's talking about the proposal for what became the statute for religious freedom he says our rulers can only have authority as we have said that to them. we are answerable for them but legitimate powers extend only to such acts as to others but it does me no injury for my neighbor to say there is no god or 20 gods. it neither picks my pocket nor breaks my leg. it neither picks my pocket or breaks my leg and is none of the governments business. madison in his old age was very proud and he wrote a memoir where he told the story once was in his 20s she served on the committee that drafted the declaration of rights and the primary figure was george mason respected statesman and in the original draft he wrote all people would enjoy the total toleration of religion and
matheson, this then basically unknown upstart jumps up and says no, you can't use the word toleration, you must use the word liberty. he was proud of that, what the founders did here and elsewhere is embraced the presumption we are all free, not that we are on the free until the government gives it to us and that is reflected in the text of the constitution securing the blessings that say our rights shall not be abridged. no law respecting the freedom of speech shall be passed. the right of the people shall not be infringed and of course the ninth amendment that make clear the list of rights is not exclusive. just because it doesn't say you have the right to run barefoot through the sprinklers on a hot summer day doesn't mean you don't have that right. it says the government isn't
giving you freedom. it's listing a few of your freedoms in the bill of rights. so how have we come to the point where today you basically need to get the governments position for a wide variety of things you spend your daily life doing. think of the things you have to ask government permission to do, a permit to build a house, get a gun, buy things sometimes, run businesses can't pay your employees can even freedom of speech now often comes with a sort of permit requirement. we have these colleges and political convention setting up the speech zones which are basically cages where you're allowed to express your opinion as the popular saying i always thought america was a free speech zone but it's also a subtle sort of thing you find in places you wouldn't expect. the example uses the architectural design review that
occurs when an architect has planned out may be a single building or subdivision and goes before the city zoning board and they say it complies with all of the safety codes but i just don't like the way that it looks. i would prefer that it be colonial instead of whatever style is defined. it's an expression that should be protected by the first amendment. no one can walk through the doping from the masterpiece like this without experiencing the aesthetic feelings artists seek to convey. the architectural design review
shows that the architect's own. what's happening is we are replacing the free society where you are not free unless the government gives you permission. the model they use for this that i describe in the book is the difference between the nuisance and a permit system. it's built on the classical principle. as opposed to the permit system that says you are not allowed to do this thing unless the government allows you that there are problems with the system. one of the problems is that it's basically reactive. that allows people to commit harm anything you can sue them
or get an injunction against them after. it says you have to prove to us that you are qualified before you act. no individual government can possibly know all of the information necessary to run an entire economy. an example given is the pencil. nobody decides how to build a pencil because to get the wood you have to have slumber and that means you have to have arms. a few steps into the entire economy is spent building a
single pencil and it avoids this knowledge problem. it causes the problem. in defense of an object or that wanted to start the company in most states you're not allowed to start a moving company on till you get permission from the moving companies and the state. it's called the mississippi law. to say there is no need and guess what, they often say that. we took the case to court and i asked how do you decide whether there is a public need or even
worse a future public need for a company somewhere down the line. the bureaucrat asking the questions that there is no objective criteria. that is another problem with the system. you can't have a gun unless there is good cause. one violates the principle of equality. who has to ask permission. an inferior has to ask permission of a superior. slaves have to ask permission, children have to ask permission, until recently, women had to ask permission to get jobs &-and-sign contract and so forth. to ask permission of someone else means appeasing the person
rather than treating them as equal citizens were government employees who stand beneath the citizen in that sense. it substitutes political or economic power. it creates a class of people that can use that power to benefit themselves. it was a class of people whose cousins served on the board or whose cousin served on the committee in exchange for a little something that might be able to get some time in front of the bureaucrats. that's another problem. it allows those in power to demand something in exchange for a permit. they come back and demand property or cash in exchange for the permit.
several years ago my client was giving up the right for a building permit. but the most offensive part of the promotion system across the board is how it deters innovation. think of all the permits they have to get involved hearings they have to go through. it is just too much trouble. he can never assess the cost. how many jobs might have created and how much wealth and how much others because of his innovation that vaporize in that instant.
we will never know what might have been if there wasn't a government apparatus barring innovation and you can prove that there needs to be a new business of that kind. i've been a libertarian since i was in high school and remember how often i would say something about freedom is good and the answer would come back yes but you also have to have responsibility and this is the response i would get it is supposed to impose responsibility but the problem is responsibility can take two different meanings either don't hurt people or it can mean do what we say and that is the permit system.
i think the nuisance system is a bad way better way to approach problems and needs presuming people free unless they are going to harm another person. we are sliding more and a society unless you get the government's permission and in the permission society we are moving away from the principles of freedom. 1946 justice robert jackson was looking for the right way to describe the freedom he hoped would rise from the ashes of europe and he found those words in a poem. all we have of freedom is our fathers bought from us long ago ancient right unnoticed as the rest of the troll live by no man's leave underneath the wall.
it is the essence of freedom. the more we are required to ask someone for permission to more of the government consumes we are not free unless the government says we are the less freedom we have. there is no reason for it. we accept the idea people are free most of their lives and most of the dangerous things we do, driving were eating we don't have to get the government's permission before we do those things. why can't we trust our fellow citizens freedom and if we can't, who can we trust with hours -- ours. [applause] >> once again, we ar we're hereo mark the publication of "the permission society" which does
in the audience can purchase outside along with other book. feel free to do so and he would be glad to sign it for you. while you were talking, my colleague sent an e-mail with breakinofbreaking news that thet judge has struck massive unchecked power of the consumer bureau. so keep talking. [laughter] to offer a somewhat different perspective people here from an old friend at the cato institute that has spoken more than once, professor alan morrison who is the lerner family associate dean for public interest at george washington university school of law and for most of his career, dean morrison worked for the public citizen litigation group
he cofounded in 1972 and directed. his work involved litigation in various areas including open government, opening up the legal profession but failed to comply with the law, forcing separation of power and protecting unrepresented class action settlements. he's argued 20 cases in the supreme court including victories in the virginia state bar subject to antitrust rules for using minimum fee schedules, the state board of pharmacy, the consumer council making commercial speech subject to the first amendment and the famous case that struck down over 200 federal walls containing the legislative veto as a separation
of powers. dean morrison teaches civil procedure and previously taught at harvard, nyu, stanford, hawaii and america american uniy law schools. he's a member of the american academy and was president from 1999 to 2000. he was the assistant attorney in new york. please welcome alan morrison. [applause] >> the thesis of the book is the society is inverted and we need a permission instead of having the freedom to do what we want to do. no doubt in my mind permission is needed and it's inverted and it's nowhere near the ratio the
book would suggest in terms of permission versus freedom. as i thought about the stories in the book some of which i would agree with i remember the old saying that the plural of anecdote isn't the data. so i thought i would start with a story of my own about the permission society that occurred when i was at the end of my first year of college. it was very hot and it was lunchtime so i went below and got ice cream to bring it on back. they came up to me and said what are you doing with that ice cream and i said i eating it. nobody told me i couldn't.
did anybody tell you you could, and that is when i knew there was a difference between an mep and a civilian. so that would be the true permission society than i envisioned but i don't find that to be the permission society in the world at large today. let me start with the respective licensing and certificate of necessity. the first time i had a matter is when the cato institute was in a small house in the northeast and i came over to talk about some cases i got involved in the unauthorized practice of law when i was recommended to florida state bar tightening up divorce papers for people who couldn't afford to have lawyers. we have challenges to that in other activities and cato was very much in line involving the
legal profession as you heard of. many of them were successful but in the area i have been largely unsuccessful and i had tried to bring cases to that area raising a first amendment challenge that after all my client was just speaking and writing and that was the first protected activity but i always thought that wasn't a winning argument. it was conduct and people were trying to regulate. i didn't believe them and i still don't have all licensing of lawyers is a bad idea. it's gone too far in the areas which only lawyers are allowed to provide the necessary services. it talks about other licensing and it's one thing to have the incentive of having a bond or "-begin-quotes identify them and find out whether they have any criminal activities but here in
the district of columbia i think it was your office or maybe somebody else brought a case involving the tour guides because they had to take an examination of the monuments in the city to be able to correctly identify or else people would be misled. the case got to the dc circuit and eventually it got settled by the district repealing the requirement, but the tour guide rules still apply to other places. and it was from the misinformed tour guide, i suppose i could put the question is is it serious enough to do anything about it. the trouble is how do we deal with a problem like that and the book proposes several tests that suggest ways in which the licensing matters can be reduced. for example, there has to be a genuine need, a tough analysis
before passing what they would do about the current wall that is already on the books. the trouble with all of those is if you asked the legislators were the regulators, they would say they are already complying with them. they contend we are not regulating anything. we are doing important things. how do you get a handle on that? ..
including the ability to get proper pensions based on their disability and inability to perform any kind of work at all after coming back from war zones. it turns out somebody in congress and i don't know who, has not that requirements in their that in order to be able to assist a person filing for benefits you have to be accredited. that applies whether you are a lawyer or somebody else. if you are a lawyer not only just to apply which if you take three hours of continuing legal education to help a better file an application. and that nobody is allowed to do this unless they are accredited. i thought we're supposed to try to help our veterans. and the danger of somebody not helping them out as opposed to having them have to do it themselves seems to me to be completely misplaced.
this is apparently a recent statute because all the veterans organizations now have to get their own person a credited as well. the second area talked about in a book i fully support is the certificate of necessity. i confess i have not heard about these moving company problems before. certificates of necessity i've heard about involved the ability of a hospital to open a new place in a town where they were seeking hill burton funds to do so and in that situation before they can spend money they had to decide whether it was necessary to do that are the same thing do with bikes are expected to québecor i had not heard about this before and i applaud the efforts to go after those. i'm not sure the first amendment is the right would go after it. i'm not sure basic constitutional freedoms were substantive due process is the right way. shirley commerce clause up to in these interstate moving companies the a fruitful round
for attack. i don't know how many of you have heard about the problems the castle automobile company has had in trying to open up new markets -- tesla. tussle headed i did they want to sell the car is directed to consumers. a number of states including virginia and new jersey have laws that say you may not sell cars unless you have a dealership in our state that provides full service and warranty today. strikes me as being a plain violation of a dormant commerce clausclause that play in the individual to build of interstate companies to do business in the state. it does not help consumers at all. there's nothing wrong with a market for automobiles in this regard they can't be cured by allying tesla to come in. if it does business and provide proper service, people know about it. if it doesn't people know about
also. tesla tried to work with some of the states for a while and now i saw the other day they filed a lawsuit on commerce clause grounds challenging these laws, as they properly should. when i saw the title to this book i thought maybe this would be about the fda and epa that there is surprisingly little in it, and i think that's a recognition that in our permission society that the nuisance series only works so far. that we need some kind of protection in some cases, and i don't understand that cam disagrees. the problem is one of line drawing and i would decide and who's going to decide which areas need protection of which of them don't. and the more i've thought about it the more i thought that the problem was not in the generality but in weighing the specifics. take the precaution of principles which the book talks about.
that's a general notion that if we don't know about something you coming on the market, and it has the potential for being dangerous, pesticides, for example, or new drugs, all of which in order to do their work must have side effects and the question is if they are harmful side effects and does the drug do what he said intended to do. the precautionary principle says wait a second, if we are not sure, we should perhaps not allow something to go on the market or put it on with conditions, including postmarketing surveillance. it's not that everybody concerned about the things that we should either take everything off the market or put it on without conditions. there are interim positions and the question is, are those interim position sensible. i really like the quote and i visit several times from st. thomas aquinas, st. thomas
aquinas was reported to have said, he said if the captain of the vessel were solely concerned about the vessel safety, he would never leave port. that's an interesting way of thinking about it. the point you made earlier is we don't know what would not have happened if we don't let people go out to see. on the other hand, sometimes being in poor is not as safe as being out at anchor or out perhaps even at sea, if we have a hurricane instead of having your vessel smashed against the doc fix sometimes it's better to take a little risk and go out to see. so as i was wondering about this, about the permission was society can i thought about a recent phenomenon, driverless cars. should they have to get permits in order to be out on the road? are we willing to allow the law of the nuisance to decide whether all of us are going to
be subject to having driverless cars? or should there be some kind of restrictions, permissions, authorizations, checks in advance? and if so who should decide and what should they be? how about speed limits? is that information that we all should be granted or should we be permitted to drive as fast as we want? or what do we do about uber and airbnb court should they be regulated at all? if so, in what regard. do we worry about the interests of the workers who are subject to the conditions come or should we say they are all right, we don't have to worry about it. they are different from employees. and what do we do about the customer's? that was a piece in the post
about racial discrimination in airbnb. if they are completely unregulated, what we do about that as well? the book contains early references and praise for the decision in lochner. leaving aside the specifics about the bakers and the community got together and asked the laws only apply to bakers. the bigger question is, is it appropriate for our federal courts to essentially review because they don't like the economic regulation that has been passed by our regulators? my own view is that the harms that come from excessive economic regulation are relatively modest and that the danger of having the court stepped in and review all economic and other regulation
for substantive due process violation is a greater harm. but that's my the enemy not be that everybody else in the room. the last point i want to make is i was rather surprised at who the enemy was in this book. the enemy is the ruling class, for which i translate to be elected and appointed officials. the question is, are we better off are worse off with having democracy? because that's what we're talking about. be our guide in these areas. it is true in many cases we are beset with regulatory and legislative capture. the book is clear, however, that doesn't occur in all situations. the question is how we try to deal with that and how we try to draw better lines. the book suggests that litigation may be useful, not simply as an opportunity to turn back and that law, but as a means of exposing the silliness
behind the laws that we have, that it's a wonderful opportunity when the government has to answer your complaint. they have to put on live witnesses we will say under oath, why did doing what they're doing, and you get many answers that are essentially indefensible. all of this is part of a broader education program, and so whether litigation, which has spent much of my life doing, is going to in some cases, that's nice and important but also serves the function of reminded society we all are entitled to rational responses to the questions that we ask. thank you very much. [applause] >> thank you, alan. we've gone nearly three quarters of an hour before lochner came up, which is a long time in this auditorium. we are not going here finally from judge stephen williams who
was appointed to united states court of appeals in the d.c. circuit in june 1986. and took senior status in september 2001. like dean morrison is a graduate of yale college and the harvard law school. he was engaged in private practice from 1962-1966 and became an assistant u.s. attorney for the southern district of new york in 1966. from 1969 until his appointment to the bench, judge williams taught at the university of colorado school of law. during the sunny also served as a visiting professor of law at ucla and university of chicago law school, and southern methodist university. and he was a consultant to the administrative conference of the united states and the federal trade commission. he's a noted expert on oil and gas law and is the co-author of
cases ongoing gas law, which appeared in the sixth edition of 1992. his most recent work is entitled liberal reform in an illegal regime, 1906-1915, the creation of private property and russia, a book that we featured here at the cato institute when it came out and the book that has been described by former acting prime minister of russia as absolutely splendid. please welcome the ups of the splendid judge stephen williams. [applause] >> maybe one person is deprived of an opportunity to see me, but he can move. i thought the book was generally a very good assessment of the pathology of regulation.
i don't think it's really consistent with the norms of judicial ethics for me to try to do either equivalent of what alan did or a rebuttal of what alan said. we're not supposed to speak about the specific policy issues that are likely to come up in front of us as so many of these potentially could. but i do think what is useful for me to focus on is the fundamental question of how a permit system actually differs from regulatory systems in which the government acts after the citizen has acted. tim uses the metaphor nuisances systems, but i'll just call it non-permit systems which are, cover a lot here at the very end
of the book tim has a brief section in which he enumerates what he thinks are distinctive drawbacks to a permit system. but i will argue that except for one, a very important one, i hasten to say, except for one, they aren't ubiquitous across regulatory systems. first, when stink -- rent seeki. even in the form of after the fact regulation known as antitrust law which i think is the form of regulation probably most accepted by adherents of free markets, not uniformly accepted but nonetheless both accepted. as you know, for a long time, not so much under current doctrine, but for a long time antitrust law was a device by which people could take out
their competitors, ironically, but in any event it worked that way. so rent seeking was at work even there. tim identifies the knowledge problem which to him is an implicit claim that government has more or better knowledge than private citizens. first, i would say basically there's a lot of regulation that really doesn't depend on that at all, regulation depending upon the proposition either that transaction costs are too high for an optimal solution to be worked out by normal contracting property rights, or asymmetry of information, the drug issue, for example, being a clear case of those. in any event it's equally present in non-permit systems. vagueness, well, yes, both
systems are vague. i would argue that the vagueness of a permit system is slightly less dangerous than the vagueness of a non-permit system, with a non-permit system to govern crashes down on you after you've committed resources, possibly send you to jail and so forth, because you misunderstood a particular regulation. fourth, demanding payoffs. yes, and, of course, this is history of the certificate of public convenience and necessity, which is a wonderful chapter, recounts many episodes of that. but they seem to function in non-permit systems. the example that comes to my mind most clearly is the situation where the government believes that a bank has committed fraud, starts to
investigate, and the very fact of the investigation clouds the banks prospects, and an indictment would be fatal, let alone a conviction. the recent deutsche bank episode suggests that even rumors of an agreement on a settlement can be nearly fatal to a bank. so again, the need for payoffs, which result from the department of justice criminal pursuits, is present across the two systems. now i come to the one that i think is strongest and i'll return to it again. what he calls a double layer effect of permits. he points out that whether citizens proceed without a
permit or in defiance of limits of a permit he's going to lose even if the denial of the permit or its limitations were illegal. so that certainly is a double effect. and associate with that is the fact that in the permit system, delay operates against the citizen in favor of the government. citizen has to wait until the government has finally pulled itself together to act. i want to focus on that some more later. let me just quickly take the two other objections that he poses, stifling innovation. surely true in the case of after the fact regulation. again, antitrust is a good example. finally, the government is superior, well, yes. these other systems involve the government exercising its coercive power, its monopoly on the use of force to compel
citizens to stop doing something or to pay a fine for having done it. so i'll want to come back to the issue of essentially the delay, at the expense of the citizen actor. i think the key problem there is that it means that the adverse effects of the regulatory system tend to be hidden. so compare a system of regulation of truckers, under which you have to get a permit to go into the business, or a you can be fined or imprisoned by the government if you entered the business and the government finds that your activities have an adverse effect on the economic prosperity of the
truckers, pre-existing truckers with whom you compete. now, imagine someone who thinks he would like to go into trucking, and under the second system, the government is going to plop down on you afterwards, he buys a truck, start providing services, maybe starts to get pretty good added were pretty successful. he gets a second truck, a third truck, he has by this time quite a few customers. maybe a little reputation. at that point the pre-existing competitors asked the government agency, hey, you have to move against this guy. he is clearly violating the norm, which is probably true, and they go after them. i think in the context their ability to get the result they like is going to be weaker than in the permit system.
because by this time people know about it. if he's done even a decent job, and if he hasn't done a decent job, his business will die on its own. if he's done a decent job, people will be upset. there should be, i would hope, news coverage of the governments attacking this person. he has, i would say, a far better chance of escaping the regulatory nemesis then he would under the permit system. alan brought up uber, and one of my, this is entirely speculative, but uber by the time they became controversial had a lot of customers who were, many of them, really quite, you know, they were members of the elite, put it simply. and i think that has made it
harder. it means that the taxicab companies whose entitlements are jeopardized by uber, are a much weaker position to oppose it than they would've been before some agency regulating its services at the outset. now the concept of prior restraint comes from recent each. consider it, the same situation if a person can publish first and a premises is going to be that there is a modicum of free speech in this hypothetical society, if it's published first, then when the government goes after you, people, quite a few people presumably will know what it is you are saying.
and 95% of the time government going after you on the grounds of what you said is going to look extraordinarily silly. whereas if they simply cut off a censorship program, nobody essentially would do about it. the modicum of free speech is important or in russia of that would make any difference whether a permit system was used or just the in dva coming after you have works exactly the same. but that's because there was no way in which publications, that could represent the party line could actually go ahead. basically the proposition is one of strangling things in their cradle. and the book brought to mind a favorite poem of mine, which is all about people whose potential
is never realized. there's a nice allusion to some youth and glorious now have a rest, goes on and on in that vein. and a trucker may not seem equal that of milton, presumably is not that i think when we recognize the creativity that is associate with entrepreneurship in general, you see the message from it is really manifest that becomes important, where a private system issues. i should add one thing though. it seems to me clear that in certain cases the regular key would vastly prefer a permit system. suppose you're about to set up a line of production of cars that you now have to meet some
criteria for emissions, knox and so forth. you want to know before you spend 100 million, $200 million on your production line that you're not going to the trouble of the technology that you used in the car that you produced on this production line. so that is at least an instance where a permit system is to the advantage of the permittee. i have some other thoughts but get a chance in the discussion and work them in. >> i want to begin by saying how happy i am a number of poets have been mentioned in this conversation. i count four and i think we should make it a rule that ko should have at least three poets are quoted in every presentation. i only have a brief. i want to set the a lot of these
comments are so intelligence and keep it to require a much more thorough discussion, which is why i wrote a whole book in response, an action of the books. i know some of the references, for instance, dean morrison said the enemy is democracy. i don't think that's quite accurate but to discuss my views on the question you should consult my bible, the conscious of the constitution that discusses the dangers of democracy. i will add administrative agency that typically enforce these permit requirements are the least democratic thing you can imagine. they are not staffed by elected officials. most of the laws under which you live your life is imposed not by elected officials but by unelected higher. rats that cannot be fired because they are government union members. the basic thesis of my book is the idea of prior restraint should apply to all permit system for cars of subject. the supreme court said in the
50s that is basically three rules for when a prior restraint is acceptable, and that is they must be a time limit within which the permit will be granted or denied. there must be clear unambiguous criteria for the granting or the denial of the permit, not extenders like good cause. underwrite the real judicial review, if you wrongly denied the permit, not some sort of fake review in an administrative hearing with a prosecutor is paying the judge. my argument is basically that those principles should be applied across the board to all kinds of permit and licensing requirements. with regard to licensing, i addressed this in my 2010 book right to earn a living, and i explained i agree i think the first amendment is not exactly, not always the best route to go that way. to write about his substantive due process. unfortunate that doctor which is the oldest and most important of all constitutional protections in western civilization have been large divide by both left and right. for chile we of the goldwater is
a two to have a solution for these problems. would've been is a right to arm of the act which is legislation that would require state courts to impose a higher level of review than rational basis when it comes to legal challenges to restrictions on economic liberty. dean morrison is right, that when i address the test is about to be applied to whether a permit requirement is valid or not, that gets vague. the reason is because at present under the rational basis test it's basically anything goes the the government wants to impose restriction on economic liberty. it's basically free to do so with the right to earn a living act when enacted would require courts to ensure that restrictions on economic liberty protect public safety after no broader than necessary. when it comes to the fda our right to try legislation which is now law in 32 states is a first step toward rationalizing the currently irrational process of drug develop and approval by the fda. a process that takes as much as
a decade and $1 billion to operate medicines they could see people's lives. the right to earn a living act allows people who are terminally ill to use medicines have been upriver basic safety but are not yet fully approved for sale by the fda. as for certificate of need laws those would also be bright or living act and think solve the problem. keep in mind when i talk about intrastate certificate of need laws. the law to abolish in the 80s. it's intrastate, within the state. that's the problem and that can only be addressed by legal reform or by courts taking service to the protection of the 14th amendment that prohibit government from arbitrarily deny people the economic liberty. i think judge williams has a good point that really the question is between reactive and proactive are becoming prior restraint versus punishment afterwards. it's true you will encounter a lot of similar problems in punishment afterwards that you would encounter in prior restraint.
that's also true in speech. lawyers had a long debate since the constitution was written over how much further the first amendment goes than the old rule against prior restraint and everyone agrees the old rule, everybody except the supreme court seems to agree it's part of the first amendment. prior restraint were never allowed. the supreme court said except when. one thinks of the passage in the animal farm with animals emerge to find that no animal shall drink showed be changed no animal shall drink to excess. no prior restraint to access it with the supreme court houses. in any case part of that debate between proactive and reactive is can you really punish the person after the? >> is that okay? early federalists, the adams administration suggest. it's okay to punish people after they speak for the words that the outer. courts have developed doctrines that allow in some cases like libel or threats of the most part protect free speech.
i think if the same vigils were applied when it comes economic liberty and the other issues i talk about we would be and the better state than we are not in. that's why my book doesn't try to go easy lines and say here's a clean solution because i do agree there are cases, i think rick cases, when a prior restraint rule is appropriate. but have to fall under those three criteria, specific timeline for the grants and denials. clear criteria for the granting or denial, and judicial review if you wrongly denied before they can be considered appropriate. thank you very much. look forward to your questions. [applause] >> thank you very much, tim. do we have any short discussion? okay. let's open it up to questions. please wait for a microphone to get to you. identify yourself in any affiliation that you may have.
as i'm sending one person on one i'll, i'll send another person on another i'll so that we can get in as many questions as possible. and please ask a question, don't give a speech, and let's begin with this gentleman right here spoke michael, washington, d.c. i work in the field of mental health and hold the number of licenses to do that. in the very local jurisdictions. one of the things that is involved in getting those licenses are a member of the prerequisites. it's in my belief for some time that the prerequisites are our expression of governments inability to devise a test that i could make sure that somebody should be allowed to practice in the profession. i just wanted to comment on that. >> i have a whole passage in the book about what psychologist licensing should be abolished across the border psychology is
nothing more than talking a supposed is a country which includes prescribing medicine. psychology as a talking cure and it is in principle no different than the discussions that go on between a pendleton and a priest, between myself and my mother, between myself and my best friend, between, you know, people talk about the problems. we look at the statute for the legal definition of psychology, that's what you find. you find these terms very broad like helping people with a human problems. does that satisfied the void they can to make this criteria? holy cow. the answer to put becomes desperate to do with depressed people who might kill themselves if you give them bad advice. but the same could also be said of conversations with my mother and -- just kidding, mom. just getting. that's true of priest and so forth. that's why these laws are riddled with exceptions. exceptions. they don't apply to them as other clergy.
lawyers can practice psychology. did you know this was on know this was i'm a license attorney so i can practice psychology. i guarantee i have no expertise in psychology. i think those kinds of rules should be abolished and not only is it that these standards like the governments inability to come up with precise standards not that inability gives an opportunity for rent seeking by those of licenses to private competition against them, and that's the real problem. [inaudible] >> i think in some cases it can be spent again, let me see your hands so we can send -- go ahead. write your first, and then here. >> joel, i am an attorney in washington. coming back to the psychologist, isn't it sufficient to say that you must have at least a master's degree or a ph.d as a
prerequisite that doesn't involve a lot of government regulation but nevertheless protects somebody who's got admitted mental problems or they wouldn't be there from being injured? and second my understand is in a number of states, psychologists have gotten or are actively trying to get the right to prescribe medicines to patients just the way a psychiatrist would. doesn't have begin to weaken your sort out the second part of your argument speak with is the profession is different than the cry to should be different. i would have something that says you have to have a masters over something that's more vague like you have to prove you are skilled and competent or something like that. i guess it's a question of how much of a camel cells are you willing to accept under the tent? you find problems like the case i discussed in the book in which a columnist, a newspaper advice column is was process for
practicing psychology without a license. i think it goes without saying that the licensing of advice columns is not compatible with the first amendment. america's first advice column is of course as benjamin franklin who never went to college, although he was called dr. franklin, he did not have a doctorate. he often made at the questions he answered in his is bigger. i would've been inconceivable that the first amendment would authorize a license. the medicine rules are a form of permit requirement for possessing medicine. as the libby jury and find with all of it being illegal. if there is going to be restriction in needs to be as unambiguous and as fairly and forced out possible. >> the kentucky doctor ultimately won his case in a decision by the federal district court. >> the advice column reminded me of when i talked to professional
ethics allows i used to use ann landers, our advice columns about giving legal advice to somebody would, can you do this and what happens what she would give advice so i would ask my students, is she practicing law without a license and if so in what jurisdiction lacks the other thing, there's an interim position on the psychologist, and that is a certificate which says if you have a certificate in order to see that you're a psychologist, i have some subjective crunchy. you of taking the following courses over. if you don't have a certificate you can practice anyway it's an indication that you are more qualified than i would be, for example. example. >> i'm interested to africa to discuss the our private market alternatives to government licensing and regulation are almost invariably preferable. when i go to a restaurant i don't look up their licensing history with the department of health. i looked them up on yelp.
i ask my friends, don't go there, i got the stomach flu. that i don't go there. that's what most people do. uber provides a rating system for the drivers which is not provide any effective way by any taxi regular agency except in competition with uber that i think there are alternatives available. keep in mind the supreme court in a playboy enterprises case looked to the availability of private market alternatives as part of its narrow tailoring analysis as part of the question of whether they were less restrictive means available. i think the time is, to push the point and said if the our private market alternatives to government regulation, that means this regulation is broader than necessary. >> would it make a difference with the psychologist you have just woken up, if the advice were given free rather than commercially? >> of course that didn't make a difference in the unlawful practice logo that is quite clear whether you're giving out
free advice and the same is true in medicine, subject of course to your mother's exception for telling you to take some aspirin and go to bed. >> so if you are a non-lawyer brother like you should legal advice he's guilty of practicing law without a license? >> yes. of course, somebody has to notify the authorities and decide whether they're going to come after you, that technically yes, that's right. >> i talking about this legal doctrine of professional speech with the government can regulate what professionals tell their clients more directly than it can record speech the i dropped and that is not to discuss, never endorsed by the supreme court was never even been discussed in a single majority opinion in the history of the united states supreme court. lower courts have adopted this doctrine that says a government official, an elected legislator who has no expertise at all in psychology or whatever the
profession might be is in a better position to tell a doctor what he can tell his patient than i am. that doesn't make any sense whatsoever. [inaudible] [inaudible] [inaudible] >> if that's the message i gave i am greatly sorry because of course the doctrines of human liberty that the found indoors or doctrines that are always true for all people everywhere, and i would be ashamed of my so be ashamed of if i had said anything that was narrower than
that. >> steve webster follow-up. >> i just wanted to underscore that. i thought he unduly slighted magna charta because it fairly explicitly purports to represent the continuation of ancient liberties, which i think, and then when you see it under coca, that seems in effect to be something very again to natural law. the source of these liberties is complicated. >> there was one involving the licensure requirements of the city of london with respect to a doctor. >> i'm a great admirer of lord coke, the greatest of all time. what he said about magna charta i think it's not really what magna charta says but i believe
there was a decision from the court of king spent in the 1910s that said lord coke was such a great alert even his mistakes are the common law. [laughter] >> i just found out that you wrote a new book based biggest could you speak a? >> can you hear me now? the question is about your book. what are some of the good results or outcomes that you found in your research that we can say we actually practice? i think it's a good theory but i wasn't adequate in terms of what you discuss to actually implement that in terms of understand just what getting permissions all about from your perspective. >> the faces on about is a we typically should be required to ask permission in the first place. i actually found something the positive outcomes as i was putting together the examples that assert that hard time finding negative examples. because a lot of the time these
people take on these cases and win them. the psychologist who is writing a newspaper column, he ended up winning his case. that is because in this case the institute for justice but other organizations that will represent people for free were willing to take on that case. we can never really know how many people would have been scared away by threatening letter from a the kentucky department of psychology licensing. so we don't really know whether the outcomes are all go to that and it's impossible to get empirical research of that sort. i get a lot a positive example of how indie and people take on the system and one. of course, i'm an abyss of taking on the system, and i hope winning. so wrong law, let's take this problem on but it is a real problem. spin the louisiana floors and did lose. >> in louisiana you have to have a license be forced to at the time that case would on your graded on the beauty of your floral designs, for example, spent you might get a bad floral arrangement and with to protect customers from that.
>> he's not making that up. >> all right. this gentleman right appeared at the and this gentleman writer. >> i've in an endangered species at the fcc and now three times your honor at the d.c. circuit. i'm an out of print or, and professor, it occurs to me that an inter- marker was required from the curia said dominic and the holy father. and if it was obtained, the consequence could event significant. i think the little bit of latin here, innumerable care costs, do you agree, professor, that you draw the line benefit cost is a way to go if regulation is potentially desirable or not? and that too little of it is done in article ii agencies? and, your honor, regarding seeking forgiveness rather than permission, don't you think the cost of capital is a self-regulating factor?
if the risk of not getting permission up front and getting punished later is very high, the cost of capital can self regulate that for an enterprise or an entrepreneur. thank you. >> good points, all. >> i don't see, i could see at the cost of capital makes a permit system, increases the ways in which permit system is preferable in my example of the automobile manufacturer, but i'm not sure how that's self-regulating in the sense that that cost of capital is brought to bear on our legislators when they are deciding between different approaches. [inaudible] >> but the system has to be set
up to allow that. i've tried to answer the the question to i'm not quite sure and to the question is the question is do our agencies that cost into account in a proper way, the answer is i think so but i'm not sure. and i don't know how i would be able to measure whether they did it properly or not other than the fact we have judicial review at the very stones and weird political review. >> and if you're not sure how, why is it you are confident that the agency is able to take these into consideration? >> able or does or does properly speak with probably willing more than able. >> i do know. i think some agents are more willing in some circumstances than they are in others. some of them are instructed take safetsafety into the intimate romantic safety and account. some administration and some situation and not in others.
>> the epa is notorious in that regard. >> a question for mr. sandefur. which are taken on the defense of adam and eve after they were expelled from the garden of eden for eating the forbidden fruit? >> well, i'm delighted to note the reference to go with -- no, no was one of the -- is my favorite christian libertarian and definitive read paradise lost i urge you to do so. as dr. johnston said no man ever wished it longer. i think milton gives the best possible defense of adam and eve, specially added who chooses to eat the apple and live in a fallen world rather than live without eve which is most beautiful love poem i've ever read spent of course it's of the snake who needs is some representation. >> we only one side of that story. >> after all, he got a bum rap. the same is not in the tempting. the same is succumbing to the condition.
speedwell, was a free speech. >> that's a lesson for corruption of political officials as well. it's not in the tempting. it's in the succumbing to which many a political operative have done. although and back we have a hand up. if you could run right back there. any other hands? let's see them. >> george cook a high school senior at high school in potomac, maryland. there was some discussion of due process and abroad my senior thesis on the state of freedom of speech and the first amendment and universities, particularly public universities. i was one if you could comment on the state of free speech and public universities, and particularly denied due process. >> ish in the book in which i make an analogy between the resort enacted yes means yes law in california, and the
permission society as a form of permit requirement for sex. where you are presumed of rapist unless you can prove afterwards that you got consent from your partner at every stage, do she did not revoke it afterwards, which is a plain violation of due process can undermines the basic principle not just of our criminal law but of epistemology itself which is that who a search of the claim is proven. that's the origin of our principle of innocent until proven guilty. the reason for it is not a preference of just an avatar preference of our society. it's written into the law as a logic, that it's impossible to disprove something truly and, therefore, it makes no sense to put the burden of proof on the defendant to prove that he did not commit the crime. something that is a real problem. with regard to free speech, i have to admit i am astonished by what is going on on his university and college campuses. i did not see this coming.
i am amazed by the degree to which it seems that schools are cracking down on unpopular thought. it's a disgrace in a country that not only prides itself on freedom but that has long prided itself on trinkets rising generation to cherish and protect the principles of freedom. as reagan said we defend freedom here or it is going. if we don't defend it, then we must tell our grandchildren what it was that we found more precious than freedom. it's disgraceful that we are facing a situation where even the most innocent remark or a halloween costume can get people in serious trouble with universities that all after all government entities and have a constitutional obligation to a court due process rights to students before punishing them. i ask you that i going to college that receives no government funding, hillsdale college, though they also have a disciplinary restrictions on free speech. and in any event i think it's a shame, and i don't talk about
it, that part, at great length in the book. >> even in private schools and our contractual remedies that are often invoked by such organizations as fire, the foundation for individual rights in education, and you can go to my website at cato and find too long speech on the subject of free speech in academia. tim is right, what is going wrong today is very different from back in the '60s when the students were clamoring for free speech as in berkeley, california. today it's the students who are clamoring for safety and, it's a crime always as that is what to be sheltered from anything that makes them uncomfortable. >> a lot of people are some of with the axle what don't they put in a word for another ever opposition, the student press law center which i've been a great fan of for many years. >> next question. >> i have a question about the
extent of government powers without crossing that line of asking for permission. so the first would be a registration requirement, whether you don't as for permission which are required to inform the government before you do. the second would be some type of requirement to post a bond so that afterwards if they find you violate the rules we have a way to punish someone has no money. and the last would be, indicates will reduce which to a permissions system, say the government writes very vague vae regulations and lsu to hasek and whether such and such a thing would violate the law and advance an education a safe harbor, which is perhaps be going into many of the same problem as such a system like that? >> i'll let the other panelists go first if they would like. >> yes. you are right i think identify a
continuum in terms of degree of advance review, but most of the problems tim identified associates with a permit system applied across the board. >> so i think in partial response is the question is what is the substantive standard under which you can either be granted or denied a permit or be punished or have something happen to you afterwards? the difficulty in designing words that will express -- tim doesn't like good cause, but the public is showing to find something else in various circumstances that will work in the context of particular lachish. good cause mean something than for firearms than does whether someone can be discharged. >> now, i think so in my perfect world i wave my wand and to get rid of the permission society. they're still or something
similar to permit requirements and guided by myrmidon insurance companies. if i'm going to start a business i need to get insurance in case the place burns down. they insurance covers and we will ensure you, but you have, you have to show she built her house out of fireproof or your business out of fireproof material or something like that. in fact historically government often looks to quite do that we're first in the interest of these in order to adopt its own criteria that is imposing form of building grants. i think the market alternatives and the benefit to them is a more flexible. pace zone comforts of the zoning was mostly, 100 years ago sony was going to be rational legislator we would have debate in the parlor is just a silence at the will have the business over here and the residence over there. first of all it was captured to rent seeking by people who want to exclude racial minorities from white neighborhoods and
used to block that from happening which, of course, still goes on, just totally. and if you look at, look at the zoning map of manhattan today. it is every bit as crazy quilt as it ever was a century ago. except there is this difference at all the exemptions and grandfathered in and excuses and all these different roles, both of all been triggered by a medical decision making instead of by the economic decision-making of the people who want to use the property, consumed as a blind event. instead it's been so what do you know somebody at city hall, with you can persuade city hall to get an exemption and that sort of thing. >> and, of course, abuse of insurance companies and a competitive insurance market allows for a cost-benefit analysis to be brought in in a rational way, unfortunate agencies are less able. >> this is why roger has to go on the outside and one person who. he can't help --
>> not that you needed. when you die will come to the rescue. we have time for one more question. all the way in the back. >> national center for public policy research. mr. secretary for -- >> could you hold the microphone closer to speak with how's about? dean morrison referenced your use of the term ruling class but he seemed to her as to what you meant by it. so could you tell us briefly what you meant by the ruling class? were you referring something similar to what angela wrote about in this essay a few years ago? would you close that up for us speak with it has some parallels but what i meant is that we have a system as a significant mission system here to look up sectors and asked for their permission to do your thing. those superiors, what happens is
over time that gets comical lessons into private overclass and the people of to ask permission to listen to permit under cluster and grid example, a moving case. kentucky would not allow new competition in the moving industry at existing industry, existing moving covers could sell or give their licenses to others. so typically decade or so for them to friends and family members. and then gradually which is happening is there's a class of people who have licenses and the class of people who don't. the more the system turns into the permission requirements, the more separated and rigid those classic dissenters become. so i think what happens is over time those tinted polarized around racial distinctions, around distinctions based on socioeconomic status from the beginning point. if this malady continued to worsen to which end up with is something like the old regime of friends, that's for you, jason,
or the 18th century england where it originally coalesces into guilds of insider status and those of us ago. one of the great revolution of 18 sensuous to break the system down. jefferson talks in some review of the right to british america, the java got into writing the declaration. it's illegal for the colonists to make things out of iron. at that time they were required to sit in the iron to britain to be made into consumer goods and then shipped back to the colonies for use. why? he says to protect not men but machines in the island of great britain. what he means is this class of people of political protection so that they don't have to compete fairly. a great idea of our economic system is that we shouldn't have those classes. it should be up to personal merit and hard work. >> there's another old world, old word that captures this
regime of the ruling class that extends well beyond the government officials, and it's called syndicalism. remember that when. >> i think of the power ballad smooches from dr. seuss. that system gets worse and worse over time. >> again the permission society is the book we are here to note, and please avail yourself of the opportunity to pick up a copy outside. tim will be glad decide for you as long as, as well as other books. also, i again want to thank the federalist society for their cosponsorship of this program. i want to take c-span and its audience for joining us in this program. and let's now had a duty conference center for lunch. before we do, give a warm round of applause to our guests. [applause] ..