I like monks, particularly creative monks.
They make Chimay. That ought to be enough right there. They cut hit records. They live a life of asceticism, which I like both because it's an impressive spiritual discipline and because it leaves more Big Macs, iPads, and women for me. They are often self-supporting through crafts. Yes, that means that they live a life of spiritual and intellectual inquiry, but don't expect anyone else to pay for it.
Unfortunately for monks, the Nanny State is no respecter of asceticism or small-scale, self-sustaining craftsmanship.
Through the Institute for Justice, whose free speech blog I mentioned before, I learned about the dilemma of the monks of the Saint Joseph Abbey of St. Benedict, Louisiana. As part of their effort to be self-sustaining (which means not only no government handouts, but no financial support from the Catholic church), the monks of Saint Joseph make beautiful, simple, traditional caskets. I'd like to be buried in something like that, rather than in something that makes it look like I'm being buried in a grand piano or the desk of the senior partner at Skadden. The caskets are significantly cheaper than most, and you can buy one in advance and only pick it up — well, technically, have someone else pick it up — when you need it.
Of course that's a problem. The Institute for Justice explains:
Louisiana law purports to require that anyone who is going to sell a casket has to jump through all same regulatory hoops as a full-fledged mortuary operation that embalms bodies. See, selling "funeral merchandise" (including caskets) means you are a "funeral director." And to be a "funeral director," you must be approved for "good moral character and temperate habits" by a funeral-related government entity [of course, that's in Louisiana, but still], complete 30 semester hours at college, apprentice with a funeral director for a year, pay an application fee, and pass an exam. But that's not all. If you want your facility to sell caskets, it's got to qualify as a facility for funeral directing, including a showroom and "embalming facilities for the sanitation, disinfection, and preparation of a human body."
So, to sum up: Louisiana would like the monks of Saint Joseph to take college classes, intern with a funeral director for a year, pass an exam, pay a fee, be approved by a board, and convert part of their monastery into a professional mortuary in order to sell hand-crafted wooden caskets. If they don't, they are guilty of a crime. The Institute for Justice has sued in federal court on behalf of the monks, seeking an injunction against the relevant Louisiana codes. They assert that they violate the monks' due process, equal protection, and privileges and immunities rights. (That last represents the Institute for Justice's hope over its experience, I think — it's a seed oft planted by libertarian litigators in the fond hope it will someday yield fruit.)
Defenders of the regulatory state assert that such regulations are reasonably designed to protect the health and safety of the populace and defend them from fraud and mistreatment by bad apples within an industry. Certainly regulations can have that effect, to a limited extent. But it's credulous to think that's the only purpose, or even the primary purpose. High regulatory barriers to entry to crafts, professions, and marketplaces is merely a form of rent-seeking by the people — and conglomerates — who want to keep those crafts, professions, and marketplaces themselves. Established "funeral directors" want the law to require anyone who wants to sell a hand-crafted casket to intern for a year embalming bodies, because the established funeral directors already did that internship, and correctly perceive that the barriers to entry will deter most of the competition, both by craftsmen like the monks and by big national retailers like Costco. Either the monks or Costco can provide consumers with a cheaper product (though frankly, it's damned inconvenient to buy your caskets in those giant five-packs.) Costco or the monks may well provide more variety. Certainly you will not find anything like the beautiful, simple caskets made by the monks of Saint Joseph at your local chain funeral home. But the funeral homes — which are increasingly run by conglomerates that approach monopolies — don't want you to have any more price or selection choices than they want to give you, because that's bad for their business. So they rent-seek. Using connections, influence, and campaign donations, they get government to create high barriers to entry. They are modern guilds.
The popular perception is that big business is against regulation. That's only true to a certain extent. Big business doesn't like regulation that makes it difficult to operate. But big business is not adverse to regulation that makes it difficult to enter the market in the first place and compete. Hence, big established toy manufacturers are not the ones protesting vigorously against the ruinous CPSIA we've blogged about, which makes it prohibitively expensive for small producers of kids' toys, clothes, and books to enter the market.
So should we abandon regulation entirely? No. But we need to keep in mind that all regulation has costs, and we need to be more skeptical about, and critical of, the need for particular regulations and their connection to their putative purpose. We need to stop doing industry's leg-breaking for it. After all, in a country where you hear about a story a month about funeral homes mistreating or abandoning bodies, it doesn't really seem that funereal regulation does a great job of protecting the public from abuse — even if it does a pretty good job of protecting them from craftsman monks.
Last 5 posts by Ken White
- If LawBot Wants To Know About My Anus I'm Sure It Has A Reason - October 26th, 2016
- Popehat Signal: Help Defend A Seuss-Trek Parody Under Fair Use - October 26th, 2016
- RIP Abe Doe - October 21st, 2016
- Lawsplainer: The Ninth Circuit and Compelled Speech About Abortion - October 17th, 2016
- Thanks and Congrats To Dhillon Law Group For Important Pro-Bono Anti-SLAPP Win - October 10th, 2016