> -----Original Message-----
> From: owner-lbo-talk at lists.panix.com
> [mailto:owner-lbo-talk at lists.panix.com]On Behalf Of JKSCHW at aol.com
>
> << n theoretic economic terms, the law is a "transaction cost" - a dead-loss
> waste that we try to minimize but a waste by its inherent nature. People
> intuitively have that sense and have honest suspicions of those who engage in
that
> process, even if they protest that by good performance of their job, they
reduce those
> >inevitable transaction costs. >>
>
> I hadn't noticed this particularly inane comment, and since it is relevant to
> some work on the rule of law that I am doing, I thought I'd comment. 'First,
> not all transactions costs are waste. Waste is unnecessary and avoiadable
> expenditure of scarce resource that does not benefit anyone, or benefits far
> fewer than it harms. Since in the real world all transactions are costly,
> transactions costs are not all wasteful. It's only the unnecessary ones that
> are wasteful.
Less inane than splitting hairs. Costs are costs- if they do not themselves create wealth, they are wasteful in most senses of the word. Yes, there is a specific legal definition of "waste" which is a pure activity that creates no utility for anyone -- although it's almost a unicorn beast as far as the number of times it matters in the law.
Transaction costs are inevitable and there are ways in which lawyers can reduce them, although they also increase them in many cases. But a lot of people understandably find people spending time obsessing about those costs, rather than doing straightup productive work, to be a tad suspicious, especially when most law is not about those transaction costs but about redistribution of wealth to the wealthy.
I'm not sure why Justin is holding out for all this Posnerian defense of the law. Most of law is the oppressive use of overwhelming corporate power in the courts to redistribute wealth from the working class to the corporate rich. Sure, there are instances of it creating nice models of negotiating efficient allocation of resources -- I even buy it in limited areas. But why hold out for this massive defense of the law for its few saving graces given its overwhelming oppressive character.
Maybe it's my union background. The law delivers very little as far as defense of workers, but does create whole areas of injunctions and repression for most workers - independent contractors, subcontracted workers, low-level supervisors and any worker engaged in secondary picketing or general strikes.
Justin seems obsessed with my Yale education but my disdain for the law derives far more from my training as a union organizer on the streets of Las Vegas. The Hotel & Restaurant Employees (HERE) International Union is probably the most anti-law union in the country and a lot of the attitudes stuck. HERE organizers would generally rather choke on their own vomit than actually go to the NLRB for an election precisely because the law is so anti-worker. I also admit to a historical fondness for the Wobblies who would not even sign contracts with employers because they wanted to stay as far away as possible from legally enforceable documents in order to stay away from the courts. Much of the stultifying business unionism of the post-War era came from the increasing legal bureaucracy that enveloped worker representation through the legalistic grievance procedures. As the saying goes in the union movement, "employers act, and unions grieve, and grieve, and grieve."
Of course, in the abstract, the rule of law is a good thing, but in a capitalist state, the law and its lawyers are the shock troops of implementing that class power. There are admittedly some legal tools scattered around for the benefit of workers and the oppressed -- mostly passed by those evil Democrats we hear so much about -- but they are tiny dikes in a sea of capitalist power. Progressive lawyers by necessity fight to use those tools to the best use possible, but that is praise for what activists do all the time in making lemonade out of lemons, not that's not praise for the law itself.
-- Nathan Newman