William W. Buzbee
The virtues and effects of federalism continue to generate political, judicial and scholarly ferment. While some federalism partisans champion exclusivity and separation, others praise the more common political choice to retain federal and state regulatory overlap and interaction. Much of this work, however, focuses on government learning or rule clarity, giving little or no attention to how different federalism choices can heighten or hedge risks of regulatory failure and policy reversal. These debates play out with unusual fervor and with high stakes in battles over climate change regulation. Despite broad agreement that any effective climate policy
intervention must include national action, disagreement reigns regarding the retention of state authority.
In an era when administrative agency actions succeed or fail based on the thoroughness and rigor of their cost-benefit analyses and expertise, the 1940 statutory ban on hiring economists at the National Labor Relations Board (NLRB) is a shocking anachronism. The ban, accompanied by the Board’s failure to solicit external expertise, severely limits the success of the Board’s actions on judicial review, its institutional competency, and its ability to assess the economic effects of its labor regulation in achieving a central goal of the National Labor Relations Act: equal bargaining power between workers and their employers that secures competitive wages and increases worker purchasing power.
This Article proposes the reestablishment of a Division of Economic Research at the NLRB to integrate the study, analysis, and propagation of labor-related social science into the Board’s enforcement and policymaking.
Miranda Perry Fleischer & Daniel Hemel
Proposals for a universal basic income are generating interest across the globe, with pilot experiments underway or in the works in California, Canada, Finland, Italy, Kenya, and Uganda. Surprisingly, many of the most outspoken supporters of a universal basic income have been self-described libertarians—even though libertarians are generally considered to be antagonistic toward redistribution and a universal basic income is, at its core, a program of income redistribution. What explains such strong libertarian support for a policy that seems so contrary to libertarian ideals?
This Article seeks to answer that question. We first show that a basic safety net is not only consistent with, but likely required by, several (though not all) strands of libertarian thought. We then explain why libertarians committed to limited redistribution and limited government might support a system of unconditional cash transfers paid periodically.
Although our main objective is to assess the fit between libertarian theory and a universal basic income, we also address various design choices inherent in any basic income scheme: who should receive it?; how large should it be?; which programs might it replace?; and should it phase out as market income rises? Lastly, we consider the relationship between a basic income and the political economy of redistribution. We find that the case for a basic income as a libertarian “second-best” is surprisingly shaky: libertarians who oppose all redistribution but grudgingly accept a basic income as the least-worst form of redistribution should reconsider both aspects of their position. We conclude by drawing out lessons from our analysis for non-libertarians, regardless of whether they are supportive or skeptical of basic income arguments.
Brian C. Miller
In mid-November of 2015, protestors chanting “GAME OF SKILL! GAME OF SKILL!” clamored outside New York Attorney General Eric Schneiderman’s office. The crowd protested Schneiderman’s recent declaration that Daily Fantasy Sports (DFS) contests are illegal “games of chance,” under New York’s gaming laws. Schneiderman denounced DFS websites as “totally unregulated gambling venues,” and banned their operations in New York. Echoing the protestors’ chants, proponents of DFS argue that DFS contests are legal “games of skill.” A fantasy sports contest is a type of online game in which participants choose from professional athletes in an online selection process, known as a draft, to assemble a virtual team. The participants’ virtual teams compete and accumulate points based on the statistical performances of professional athletes in real sporting events. “Players track how their fantasy team is doing using various web sites or mobile apps. Some players join leagues with friends and compete against only people they know. Others join public leagues hosted by web sites and compete against strangers.”