Somin on Koppelman on Somin on Koppelman

Andrew Koppelman

Ilya Somin, at Volokh Conspiracy, has written a rebuttal to my response to critics (including him) in the recent Balkinization symposium on my book, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed. 

Somin does not dispute my claim that sometimes, large regulatory programs are justified.  But, he says, the characteristic failures of democratic governance “amount to a systematic relative advantage of the private sector that should create a presumption against state control. The problem isn't limited to one or a few specific areas of government policy.”  This is not, however, the sort of question that is appropriately addressed with presumptions.  As I say in the book, “whether this is so in any particular case cannot be resolved without attention to the local evidence.”  (69)  Presumptions are not a substitute for such evidence.  Sometimes libertarians can supply it: we are well rid of the Civil Aeronautics Board and the pre-1980 Interstate Commerce Commission restrictions on trucking.  But sometimes the evidence points the other way.

Cost-benefit analysis, later confirmed by analysts in the Trump Administration, found that “the first three years of regulation under Obama produced net annual benefits of $91.3 billion.”  (51)  Such analysis isn’t perfect, but it can be revealing.  “[T]he Trump administration focused exclusively on the costs of regulation to businesses, either ignoring the benefits or attempting to conceal them.” (48)  The Trump policy is an instance of the Somin presumption being permitted to do too much work.

Climate change is the clearest example of the difference.  Somin’s concerns can be manipulated by actors who are a lot less admirable than he is.  Small government ideology was deployed quite effectively by the fossil fuel industry.  So the human race now faces a catastrophe that was entirely avoidable.  “The ideology of small government attracts two very different groups: principled ideologues . . . driven by philosophical commitment, and predators who want to hurt people without interference from the police.  As libertarian rhetoric becomes more common, the second group increasingly likes to masquerade as the first.” (7)

The modern regulatory state is a mighty complex enterprise, and it’s hard to make reliable generalizations across the whole.  The most powerful case for intervention is presented by problems of externalities, positive or negative, in which if government doesn’t do something it just won’t get done.  Libertarian presumptions, as lately deployed in the Supreme Court, have crippled the capacity of the federal government to address climate change and Covid. This is not a gain for liberty.

Asymmetries of information create another appropriate occasion for intervention.  Addressing workplace safety, Somin writes that “workers should be allowed to decide for themselves whether they wish to accept increased risk in exchange for increased pay or benefits.”  But of course there are some risks, such as exposure to toxic chemicals, that workers will not even know about, and which therefore cannot influence the terms of employment.  Justice Gorsuch deployed similar rhetoric of consent to allow employers to nullify workers’ rights with boilerplate contract terms.  (165)  These illustrate a more general problem with libertarianism, its focus on the abuse of state power while neglecting the abuse of private power.

I’m grateful to Somin for his willingness to keep engaging on this topic.  He is, as I’ve said, an old friend. But friends don’t let friends make mistakes about the appropriate scope of government.