Rewriting the Constitution: An Economic Analysis of the Constitutional Amendment Process

In this Article, the authors develop an economic theory of the constitutional amendment process under Article V, focusing particularly on the roles that Congress and interest groups play in that process. The authors construct a model to predict when an interest group will seek an amendment rather than a statute to further its interests, highlighting how interest group maintenance costs and anticipated opposition affect that choice. They then discuss the efficiency goals of constitutionalism—precommitment and reduction of agency costs—and argue that the structure of the amendment process under Article V prevents realization of these goals. The authors contrast the Bill of Rights amendments, which established precommitments and reduced the agency costs of government, with the latter seventeen amendments, which expanded the federal government and increased agency costs. They attribute the change in the nature of the amendments to the interest-group domination of the political process and Congress\u27 control over the constitutional amendment agenda. The authors conclude that the Founders\u27 intent to put the Constitution beyond the reach of factions backfired: although factions cannot control the content of the Constitution, neither can the majority. In fact, Article V prevents the majority from precommiting itself and hinders its ability to control the agency costs of government, as evidenced by the history of the failed amendments. Although the authors conclude that Article V thwarts the efficiency goals of constitutionalism, they predict that little can be done to remedy this flaw

Innocence Lost: Bennis v. Michigan and the Forfeiture Tradition

In Bennis v. Michigan, the Supreme Court upheld the State of Michigan\u27s forfeiture of Tina Bennis\u27s joint ownership interest in a car used by her husband for a tryst with a prostitute. Surveying its prior cases, the Court found that Tina Bennis\u27s innocence of the offending conduct was irrelevant to the constitutionality of Michigan\u27s forfeiture of her ownership interest. In so finding, the Court relied on the tradition of forfeiture to affirm the constitutionality of the tyranny and avarice condemned by James Wilson-a leading framer of the Constitution. The Anglo-American tradition of civil forfeiture, however, is considerably narrower than the Court\u27s account. The forfeiture known to the common law never would have reached the conduct giving rise to the forfeiture in Bennis. The modern Court\u27s careless reading of forfeiture tradition has allowed state and federal governments to expand forfeiture well beyond its historical boundaries. Consequently, forfeiture has come to be an instrument of oppression that would have appalled Wilson and the rest of America\u27s founding generation

Civil Forfeiture and the War on Drugs: Lessons from Economics and History

This Article uses economic analysis to show how civil forfeiture’s role in the war on drugs creates contrary incentives for law enforcement officials and encourages abuses. The Article then reviews the history of civil forfeiture and the Supreme Court’s forfeiture jurisprudence, which seems incoherent. The Authors warn that the judiciary should be skeptical of civil forfeiture and its importance to the war on drugs. The Article proposes a constitutional framework, grounded in economics and history, to limit forfeiture abuses

Regulation of Interstate Wine Shipments

Economists argue that there is no clear economic rationale for regulating interstate shipments of wine.

The Alert and Creative Entrepreneur: A Clarification

Israel M. Kirzner is the 2006 winner of The International Award for Entrepreneurship and Small Business Research (the FSF-Nutek Award). In this Prize Lecture he argues that a number of those who have commented on his work have misunderstood certain aspects of his theoretical system, and as a result the common distinction in the literature between Schumpeterian and Kirznerian entrepreneurs is flawed. He also argues that his understanding of the market process (set in motion by entrepreneurial decisions) provides a theoretical underpinning for public policy vis-à-vis entrepreneurship. Professor Kirzners main contributions to the economics of entrepreneurship were also presented and evaluated by Douhan, Eliasson and Henrekson (2007)

Emergency department initiated treatments for tobacco (EDITT): a pilot study

BACKGROUND: Emergency departments (EDs) have strong potential to initiate tobacco interventions with economically disadvantaged populations. PURPOSE: We piloted three ED-initiated tobacco interventions and derived parameter estimates for future trials. METHODS: The study enrolled adult patients being treated in an urban ED who were daily smokers. Exclusion criteria included severe illness or pain, isolation (for contagion), altered mental status, an insurmountable language barrier, temporary residence, and lack of telephone access. Subjects in the Bedside + Booster group received motivational counseling by a trained counselor at the bedside, up to three telephone sessions post-visit, and a self-help guide. Subjects in the Faxed Referral group had their personal contact information faxed to the hospital\u27s tobacco dependence clinic, whereupon they received identical treatment as the Bedside + Booster group, but all sessions occurred over the telephone (i.e., no bedside counseling). The Standard Referral group received the self-help guide and a referral to the hospital\u27s tobacco dependence clinic. We used a 2:2:1 randomization schedule to maximize our experience with the motivational interventions. Outcomes were assessed at 1 and 3 months. RESULTS: We enrolled 90 subjects. Of the 36 subjects assigned to the Bedside + Booster condition, 31 (87%) completed bedside counseling and at least one booster session, while 22 (61%) completed the maximum four sessions. Of the 37 subjects assigned to the Faxed Referral group, 28 (76%) completed at least one telephone session, while 19 (51%) completed the maximum four sessions. Quit attempts over the 3 months ranged from 18% (Standard Referral) to 57% (Faxed Referral). Seven-day abstinence was attained by 8% (Bedside + Booster), 14% (Faxed Referral), and 6% (Standard Referral) at 3 months. CONCLUSIONS: Motivational cessation counseling can be feasibly initiated during the ED encounter with minimal medical staff involvement. Adequately powered trials are needed to study ED-initiated interventions that include post-visit follow-up