Posted by Todd Zywicki:
CONSTITUTIONAL LAW AND ECONOMIC ILLITERACY:
Because of my recent research on [1]Obesity and Advertising Policy, I
have inadvertently stumbled into the periphery of the constitutional
regulation of commercial speech. After grazing a little bit in that
literature, I was struck by the remarkable shallowness in that
literature about the economic analysis of advertising. So out of
curiosity, I ran a couple of word tests just to see the degree with
which economic analysis is found in commercial speech law review
commentary. This is of course far from rigorous, but it may be
reflective of the state of the literature.
I searched Westlaw's tp-all database. First, I used the search string
"commercial speech" & advertising, and got back 4100 hits. Very crude,
but perhaps reflective of the high interest in this topic. Next, I
searched for ""commercial speech" & advertising & stigler", looking to
pick up references to Stigler's old chestnut, The Economics of
Advertising. The search results fell to 87 hits, suggesting that there
are over 4000 law review articles that touch on commercial speech and
advertising and do not refer to the seminal article in the economics
of advertising. Finally, I ran a search to try to pick up the
influence of Ben Klein and Keith Leffler's famous article, "The Role
of Market Forces in Assuring Contractual Performance", which lays out
the "quality assuring" or indirect information theory of advertising.
A search for ""commercial speech" & advertising & (klein /s leffler)"
generates only 19 hits, and of those, roughly half were by economists,
primarily FTC-influenced law & economics scholars such as Fred
McChesney (4 references), Tim Muris, Richard Craswell, Howard Beales,
Jack Calfee, and Terry Calvani, most of which are policy-oriented, not
disquisitions on constitutional law. The only non-FTC influenced
scholar who cites Klein & Leffler in the same article with "commercial
speech" twice or more is John McGinnis. A search for ""commercial
speech" & advertising & ("Type 1" "type 2" /s error)" makes zero hits,
substituting variations on "false negative" and "false positive"
raises the result to 46.
Obviously, this is terribly crude. But it is consistent with my casual
observation--constitutional law analysis of First Amendment commercial
speech doctrine and advertising seems to be largely uninformed by the
economic research of advertising during the past two decades.
I leave it to someone else who actually reads and writes in first
amendment jurisprudence to tell me whether my crude observations are
accurate. Perhaps the ideas are kicking around in the commentary, just
with different citations or simply different terminology than that
used by economists. So if someone has a better search string that I
should use to try to pick up the use of economic analysis in First
Amendment Commercial Speech jurisprudence, by all means pass it along
to me. But, if it is the case that most discussions of commercial
speech lack deep understanding of the economics of advertising, it
raises at least two questions in my mind. First, what is the model of
advertising that structures the analytical inquiry in this literature?
Second, it may raise an interesting cultural issue about academia--are
the cultures of law & economics and First Amendment jurisprudence so
different that there is little exchange across them? If so, why? My
intuition is that with few exceptions law & econ scholars generally
don't do First Amendment, and First Amendment scholars don't do law &
econ. The thinking and cultures in these two fields just seem to be so
different, and the people drawn into the two fields appear to be so
different in intellectual interests, that maybe the cultural gaps are
just too deep to make possible many people writing across the gap.
Considering that most constitutional law scholars don't even seem to
do public choice, which would seem to be an obvious and relevant field
to work with, perhaps law & econ is even further out on the periphery
of the interest and expertise of such scholars. Similarly, most law &
econ people don't do constitutional law, and to the extent they do,
they seem to focus more on structural analysis rather than First
Amendment or individual rights/liberties analysis.
As I said, I don't do First Amendment myself (there is basically no
mention of it in my obesity article), so I certainly am not throwing
stones here, I'm just making an observation. Given the thicket of
constitutional law and the cost associated with trying to learn all of
this constitutional law, I also certainly have no plans to enter this
mess myself.
References
1. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=604781
_______________________________________________
Volokh mailing list
[email protected]
http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
