Creatures of the law

Sobotka: I’m done with you. I’ve got a union to run!

Vondas doesn’t say anything. The two look across the harbor.

Vondas: They used to make steel there no?

The two watch the plant’s smokestacks still puffing smoke.

Vondas (smiling slightly): Smoke from the stacks. But inside…

Vondas looks at Sobotka, shrugs, and walks away, as Sobotka stares across the grey harbor.

In The Wire Season 2, dockworkers union president Frank Sobotka fights to preserve business for the dwindling number of workers he represents. To fill the gap in union dues, he makes a deal with The Greeks to allow them illegal transit of material through the Port of Baltimore.

But, one shipment goes horribly wrong, and Sobotka, worrying about the consequences of increased police scrutiny of the union, angrily confronts Vondas to terminate the arrangement. Vondas, reading Sobotka perfectly, compares the union’s decline to the decline in the Baltimore steel industry. He smiles knowingly at Sobotka: You see, the decline of unions and manufacturing pass by inevitably. You can talk tough about the union, but you’re really blowing smoke. You need us now to survive.

Hereabouts, I often hear opinions similar to this message:

• Farmers and local businesses are closing because consumers demand cheap food and products!
• We can never enjoy universal healthcare because a few people will greedily schedule appointments and drain the money from the insurance pool!
• We can never produce food or necessities of life because other countries will outcompete us!¹

The common thread to these opinions revolves around the idea that our circumstances stem from the individual choices of regular people, which I find questionable and unhelpful. For example, a person lamenting the loss of independent local business contributes to that loss if they shop at dominant retailers or e-retailers. But really, what sort of evidence can support this idea that a single regular individual or even a group (boycotting) can materially change the prospects of a local business?² And what do we gain by thinking of problems as arising from an irredeemable human condition? Doesn’t thinking like this cause us to arrive at the belief that fundamentally nothing can stop the human march toward self-ruination? If that’s the case, why should people even attempt self-government?

I instead support the view (reality!) that our circumstances originate from law. Laws written by elected representatives and enforced by institutions, courts, and private citizens, still flow from people making decisions that affect others. Laws (or lack of enforcement of laws) determine how a person works, whether with dignity and free and exercising creative entrepreneurial spirit or toil under the thumb of unchecked bosses.³

Under the view that all markets stem from law, “private” commerce does not exist. All commerce bears a public character in their effect on peoples lives.⁴ In the U.S., lawmakers wrote laws borrowing this principle from English common law; and applied these laws to intermediary businesses essential to the flow of commerce⁵. Intermediaries carrying this public character included, for example, inns, bakers, ice manufacturers, grain elevators, meatpacking plants, and transporters. As people developed new forms of commerce, Congress acted to require specific duties for these market-mediating platforms to serve all comers in ways free of deception, unfairness, and undue preferences, among other guardrails.⁶

Under this view, our circumstances flow from laws and their application. Why are farmers and local businesses closing down? Most likely the super retailer the next town over is breaking the law by coercing suppliers to lower prices which forces them to raise prices to competitors like the local store. Why can Americans never enjoy universal affordable healthcare? Most likely the dominant insurance company has illegally acquired the clinic, the pharmacy benefit manager, the pharmacy, and the company approving and denying claims; and can charge higher prices and deprive competitors dependent on its businesses. Why can the U.S. not produce basic necessities, like food, sterile saline bags, pharmaceutical ingredients, Bibles? Most likely the dominant companies in these industries compete by hiring lower paid workers in or from other countries; breaking unions; lobbying for favorable laws; and so, drive honest competitors out of business.

All this to say, in response to the common opinions about inevitability: we absolutely can change course because we all live under and participate in a nation governed by rule of law!