Privatization and the law and economics of political advocacy

Stanford Law Review

Volumn 60, Issue 4, 2008, Pages 1197-1253

  Volokh, Alexander ^a  

^a GEORGETOWN UNIVERSITY LAW CENTER   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 42449131826     PISSN: 00389765     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (553)

1. In re Billings, 298 P. 1071, 1094 (Cal. 1930)
2. (quoting a 1916 article by an "odious anarchist");
3. see also, e.g., NIALL FERGUSON, THE PITY OF WAR 32-33 (1999);
4. GEOFFREY R. STONE, PERILOUS TIMES: FREE SPEECH IN WARTIME FROM THE SEDITION ACT OF 1798 TO THE WAR ON TERRORISM 141, 180 n.180 (2004).
5. Andrew Cockburn, The Great War, WASH. MONTHLY, Jan./Feb. 2000, at 51
6. (reviewing FERGUSON, supra note 1).
7. But see FERGUSON, supra note 1, at 215-16.
8. See, SPECIAL COMM. ON INVESTIGATION OF THE MUNITIONS INDUS., THE NYE REPORT, S. REP. NO. 74-944, pt. 3 at 4-10 (1936);
9. cf. Dwight D. Eisenhower, Farewell Radio and Television Address to the American People, PUB. PAPERS 1035, 1038 (Jan. 17, 1961) (warning of the "military-industrial complex").
10. See CACI Int'l, Inc., Welcome to CACI, http://www.caci.com.
11. Dr. J.P. (Jack) London, Chairman, President, and Chief Executive Officer, CACI Int'l Inc., Association of the United States Army John W. Dixon Medal Acceptance Speech (Oct. 8, 2003), http://www.caci.com/speeches/jpl_AUSA_10-8- 03_speech.shtml.
12. Tim Shorrock, CACI and Its Friends, NATION, June 21, 2004, at 6;
13. see also ROBERT MANDEL, ARMIES WITHOUT STATES: THE PRIVATIZATION OF SECURITY 86-88 (2002);
14. NORMAN SOLOMON, WAR MADE EASY: HOW PRESIDENTS AND PUNDITS KEEP SPINNING US TO DEATH 113-15 (2005);
15. Jon D. Michaels, Beyond Accountability: The Constitutional, Democratic, and Strategic Problems with Privatizing War, 82 WASH. U. L.Q. 1001, 1015-16 (2004);
16. Clifford J. Rosky, Force, Inc.: The Privatization of Punishment, Policing, and Military Force in Liberal States, 36 CONN. L. REV. 879, 952 (2004);
17. James Surowiecki, Army, Inc., NEW YORKER, Jan. 12, 2004, at 27. For a view from the very far left,
18. see Anthony Amove, Pro-War Propaganda Machine, SOCIALIST WORKER, Mar. 21,2003, at 6.
19. See Leslie Wayne, After High-Pressure Years, Contractors Tone Down Missile Defense Lobbying, N.Y. TIMES, June 13, 2000, at A6.
20. See Russell Mokhiber & Robert Weissman, Op-Ed, Arms Sellers Calling Shots, BALT. SUN, May 16, 1999, at IC.
21. See P.W. Singer, Corporate Warriors: The Rise of the Privatized Military Industry and Its Ramifications for International Security, INT'L SECURITY, Winter 2001/02, at 186, 206;
22. Juan Carlos Zarate, The Emergence of a New Dog of War: Private International Security Companies, International Law, and the New World Disorder, 34 STAN. J. INT'L L. 75, 87-89 (1998).
23. Eric Schlosser, The Prison-Industrial Complex, ATLANTIC MONTHLY, Dec. 1998, at 51, 64;
24. see also infra text accompanying notes 24-32;
25. sources cited infra note 31.
26. See Franck Vindevogel, Private Security and Urban Crime Mitigation: A Bid for BIDs, 5 CRIM. JUST. 233, 244-45 (2005).
27. See Colleen Slevin, Senate Panel Kills Bill for "Super Slab" Toll Road, ASSOCIATED PRESS, Mar. 23, 2005.
28. See Dan Genz, Texas Court Nominee Challenges Possible TTC Builder's Campaign Contributions, WACO TRIB.-H ERALD, Oct. 3, 2006.
29. See Texas Campaign for the Environment, Statewide Landfill Rules, http://www.texasenvironment.org/landfill_rules.cfm.
30. See NEIL SELDMAN, INST. FOR LOCAL SELF-RELIANCE, THE NEW RECYCLING MOVEMENT (2003), http://www.ilsr.org/recycling/ newmovementl.html;
31. Winnebago County, Wisconsin, Solid Waste Management Board, http://www.co.winnebago.wi.us/Solid_Waste/SWMain.htm.
32. Public Citizen, Water Privatization Overview, http://www.citizen.org/ cmep/Water/general;
33. cf. David B. Schorr, The First Water-Privatization Debate: Colorado Water Corporations in the Gilded Age, 33 ECOLOGY L.Q. 313, 325 (2006);
34. William E. Smythe, The Struggle for Water in the West, 86 ATLANTIC MONTHLY 646, 649 (1900).
35. Nat'l Association of Water Companies, About Private Water Service Providers, http://www.nawc.org/abou/about-myth_facts.html#7.
36. 545 U.S. 469 (2005);
37. New London Dev. Corp., A Review and Analysis of Eminent Domain, http://ww.nldc.org/documents/NLDC-EMINENTDOMAINWP.pdf (July 28, 2005).
38. See, e.g., As You Sow, Corporate Accountability, Shareholder Action and Toxics Reduction, http://www.asyousow.org.
39. See OFFICE OF THE ATTORNEY GEN., U.S. DEP'T OF JUSTICE, PROPOSITION 65 SETTLEMENT REPORT 2005 (2007), http://caag.state.ca.us/prop65/pdfs/ Alpert_Report2005b. pdf (reporting settlement awards to As You Sow).
40. See generally Michael S. Greve, The Private Enforcement of Environmental Law, 65 TUL. L. REV. 339, 351-56 (1990).
41. See, e.g., Milberg Weiss, About Milberg Weiss, http://www.milbergweiss.com/firm/firm.aspx.
42. See Hearing Before the Subcomm. on Capital Market, Insurance and Government Sponsored Enterprises of the H. Financial Services Comm., 109th Cong. (2006) (statement of Vaughn R. Walker, C.J. of the U.S. District Court, Northern District of California), available at 2006 WL 1789367 (F.D.C.H.) ("[Securities] class actions are in important respects privatized public law enforcement.").
43. See Proposition 65 and State Rights Under Attack, SEEDS OF CHANGE - E-NEWS (As You Sow, San Francisco, Cal.), Summer 2006, http://www.asyousow.org/news/AYS_enews06Q3.html;
44. Melvyn I. Weiss & Elizabeth A. Berney, Restoring Investor Trust in Auditing Standards and Accounting Principles, 41 HARV. J. ON LEGIS. 29, 56-57 (2004);
45. Walter Olson, The Lawsuit Lobby, AM. SPECTATOR, Mar.-Apr. 2003, at 44.
46. See PAIGE M. HARRISON & ALLEN J. BECK, U.S. DEP'T OF JUSTICE, BULLETIN: PRISONERS IN 2004, at 6 tbl.7 (2005);
47. DOUGLAS MCDONALD ET AL., ABT ASSOES. INC., PRIVATE PRISONS IN THE UNITED STATES: AN ASSESSMENT OF CURRENT PRACTICE 4-5 (1998).
48. Sharon Dolovich, State Punishment and Private Prisons, 55 DUKE L.J. 437, 542 (2005).
49. Id. at 523-29.
50. Id. at 542-43.
51. DAVID SHICHOR, PUNISHMENT FOR PROFIT: PRIVATE PRISONS/PUBLIC CONCERNS 256 (1995).
52. Id. at 236.
53. BRIGETTE SARABI & EDWIN BENDER, W. STATES CTR., THE PRISON PAYOFF: THE ROLE OF POLITICS AND PRIVATE PRISONS IN THE INCARCERATION BOOM vii, 21 (2000).
54. In addition to the sources cited in supra notes 10, 25, 28, and 30,
55. see LEGISLATIVE RESEARCH COUNCIL, REPORT RELATIVE TO PRISONS FOR PROFIT, H. NO. 6225, at 9, 56-58 (Mass. 1986);
56. KATHERINE BECKETT, MAKING CRIME PAY: LAW AND ORDER IN CONTEMPORARY AMERICAN POLITICS 101 (1997) (referring to influence on policy abroad);
57. DAVID GARLAND, THE CULTURE OF CONTROL: CRIME AND SOCIAL ORDER IN CONTEMPORARY SOCIETY 203-04 (2001);
58. MICHAEL A. HALLETT, PRIVATE PRISONS IN AMERICA: A CRITICAL RACE PERSPECTIVE 141 (2006);
59. CHARLES H. LOGAN, PRIVATE PRISONS: CONS AND PROS 159 (1990);
60. PRESBYTERIAN CHURCH (USA), RESOLUTION CALLING FOR THE ABOLITION OF FOR-PROFIT PRIVATE PRISONS 7-8 (2003), available at http://www.pcusa.org/oga/publications/private-prisons.pdf;
61. BYRON EUGENE PRICE, MERCHANDIZING PRISONERS: WHO REALLY PAYS FOR PRISON PRIVATIZATION? 74-75, 131-36 (2006);
62. CHARLES R. RING, CONTRACTING FOR THE OPERATION OF PRIVATE PRISONS: PROS AND CONS 12 (1987);
63. MARTIN P. SELLERS, THE HISTORY AND POLITICS OF PRIVATE PRISONS: A COMPARATIVE ANALYSIS 51 (1993);
64. THE REAL WAR ON CRIME: THE REPORT OF THE NATIONAL CRIMINAL JUSTICE COMMISSION 87-88, 92-93 (Steven R. Donziger ed., 1996);
65. Patrick Anderson et al., Private Corrections: Feast or Fiasco?, PRISON J., Autumn-Winter 1985, at 32, 35;
66. Rachel E. Barkow, Administering Crime, 52 UCLA L. REV. 715, 729 (2005)
67. [hereinafter Barkow, Administering Crime];
68. Rachel E. Barkow, Our Federal System of Sentencing, 58 STAN. L. REV. 119, 125 (2005)
69. [hereinafter Barkow, Our Federal System];
70. Jody Freeman, Extending Public Law Norms Through Privatization, 116 HARV. L. REV. 1285, 1319, 1349 n.249 (2003);
71. Gilbert Geis, The Privatization of Prisons: Panacea or Placebo?, in PRIVATE MEANS, PUBLIC ENDS: PRIVATE BUSINESS IN SOCIAL SERVICE DELIVERY 76, 94 (Barry J. Carroll et al eds., 1987),
72. cited in SELLERS, supra, at 51, 116 n.5;
73. Amanda George, The State Tries an Escape, LEGAL SERVICE BULL., Apr. 1989, at 53, 54, 57;
74. Michael Janus, Bars on the Iron Triangle: Public Policy Issues in the Privatization of Corrections, in PRIVATIZING CORRECTIONAL INSTITUTIONS 75, 83 (Gary W. Bowman, Simon Hakim & Paul Seidenstat eds., 1993);
75. Daniel L. Low, Nonprofit Private Prisons: The Next Generation of Prison Management, 29 NEW ENG. J. ON CRIM. & CIV. CONFINEMENT 1, 45 (2003);
76. Ira P. Robbins, Privatization of Corrections: Defining the Issues, 69 JUDICATURE 325, 331 (1986);
77. E.S. Savas, Privatization and Prisons, 40 VAND. L. REV. 889, 898 (1987);
78. Geiza Vargas-Vargas, White Investment in Black Bondage, 27 W. NEW ENG. L. REV. 41, 75 n.209 (2005);
79. Edward Sagarin & Jess Maghan, Op-Ed, Should States Opt for Private Prisons?: No, HARTFORD COURANT, Jan. 12, 1986, at E2;
80. Kenneth F. Schoen, Private Prison Operators, N.Y. TIMES, Mar. 28, 1985, at A31;
81. Harmon L. Wray, Jr., Cells for Sale, S. CHANGES, Sept. 8, 1986, at 3, 6.
82. Matt Wuerker, mw112, in Group One Artists, Prisons and Sentencing, http://www.newsart.com/zz/zz16.htm. I am grateful to Sharon Dolovich for uncovering this cartoon,
83. see Dolovich, supra note 25, at 529 n.363.
84. But see infra text accompanying notes 224-33.
85. See infra notes 93-98 for examples in other states.
86. Other actors that could also be in favor of incarceration for self-interested reasons include prosecutors, rural communities that could be sites for prisons, see Barkow, Administering Crime, supra note 31, at 729;
87. Dolovich, supra note 25, at 536-42;
88. Drake Bennett & Robert Kuttner, Crime and Redemption, AM. PROSPECT, Dec. 2003, at 36, 38, and providers of goods and services to prisons,
89. see J. Robert Lilly & Paul Knepper, An International Perspective on the Privatisation of Corrections, 31 HOW. J. CRIM. JUST. 174, 174, 177 (1992). I focus on prison system actors because they are the ones affected by privatization.
90. To my knowledge, this argument has not been made before in the privatization literature, except for a few brief mentions. Charles Logan made an offhand comment to this effect in 1990. See LOGAN, supra note 31, at 158. Many years later, in 2002, I flagged the issue in my own student note, but set the issue aside for future research.
91. See Developments in the Law-The Law of Prisons, 115 HARV. L. REV. 1838, 1873 (2002). And Alex Tabarrok briefly noted the argument in 2003.
92. See Alexander Tabarrok, Introduction to CHANGING THE GUARD: PRIVATE PRISONS AND THE CONTROL OF CRIME 1, 6 (Alexander Tabarrok ed., 2003).
93. See MANCUR OLSON, THE LOGIC OF COLLECTIVE ACTION: PUBLIC GOODS AND THE THEORY OF GROUPS 15 & n.22 (1965).
94. The story I tell here is also consistent with the view that political expenditures-instead of directly buying advocacy for particular policies-buy generalized "access" to a candidate, which is leveraged for specific favors once the candidate is elected. See infra text accompanying notes 154-55.
95. For a technical presentation and proofs, see Alexander Volokh, Privatization, Free Riding, and Industry-Expanding Lobbying 3-8, 10-17 (Georgetown Law & Econ. Research Paper No. 969789, 2007), available at http://ssrn.com/abstract=969789.
96. See ANDREU MAS-COLELL ET AL., MICROECONOMIC THEORY 361 (1995);
97. HAL R. VARIAN, MICROECONOMIC ANALYSIS 418 (3d ed. 1992);
98. William H. Oakland, Theory of Public Goods, in 2 HANDBOOK OF PUBLIC ECONOMICS 485, 486-88 (Alan J. Auerbach & Martin Feldstein eds., 1987);
99. Paul A. Samuelson, The Pure Theory of Public Expenditure, 36 REV. ECON. & STAT. 387, 387 (1954).
100. I relax this assumption in Part IV.C infra.
101. Indeed, economists commonly list "public goods" as a case of "market failure." See, e.g., MAS-COLELL ET AL., supra note 40, at 350;
102. cf. VARIAN, supra note 40, at 415.
103. See MAS-COLELL ET AL., supra note 40, at 168-94;
104. VARIAN, supra note 40, at 172-81. For critiques of expected utility theory,
105. see MAS-COLELL ET AL., supra note 40, at 179-81;
106. VARIAN, supra note 40, at 192-94;
107. Mark J. Machina, Choice Under Uncertainty: Problems Solved and Unsolved, J. ECON. PERSP., Summer 1987, at 121. For critiques of the assumption of (materialistic) rational utility maximization, as it relates to free-riding predictions,
108. see infra sources cited note 229.
109. The public-choice assumption that political choices are totally self-interested has been criticized, see Daniel A. Farber, Democracy and Disgust: Reflections on Public Choice, 65 CHI.-KENT L. REV. 161, 162 (1989);
110. Abner J. Mikva, Foreword, 74 VA. L. REV. 167, 167 (1988), but this model does not require such a strong assumption.
111. I assume here that the incarceration-policy game is the only game these actors are playing. This is not entirely realistic; one can lobby (or not) on incarceration policy for reasons that have little to do with that particular policy issue. For instance, the California corrections officers union gave massively to Proposition 184, the Three Strikes initiative in 1994, even though the proponents outspent the opponents by a factor of 48 and won with 72% of the vote. See Mike Davis, Hell Factories in the Field, NATION, Feb. 20, 1995, at 229, 232;
112. Dan Morain & Virginia Ellis, Tobacco Industry Power May Go Up in Smoke, Foes Say, L.A. TIMES, NOV. 10, 1994, at A3. The union may have been trying not merely to secure the passage of the initiative but also to flex its political muscle for other political battles, like fighting against privatization or in favor of wage increases. Similarly, private prison firms may shy away from advocacy in favor of incarceration for fear of a public backlash that could endanger prison privatization itself.
113. Cf. Wayne, supra note 7. (Public sector unions may not fear such a backlash because public provision is still considered the default mode of provision.) However, I assume these complicating factors away for simplicity.
114. On this assumption, see, e.g., David Austen-Smith, Interest Groups, Campaign Contributions, and Probabilistic Voting, 54 PUB. CHOICE 123, 128, 130, 135 (1987);
115. David P. Baron, Service-Induced Campaign Contributions and the Electoral Equilibrium, 104 Q.J. ECON 45, 54 (1989);
116. Paul Pecorino, Is There a Free-Rider Problem in Lobbying? Endogenous Tariffs, Trigger Strategies, and the Number of Firms, 88 AM. ECON. REV. 652, 654 (1998). It is possible that decreasing marginal returns only kick in after some threshold amount has been reached.
117. See, e.g., DENNIS C. MUELLER, PUBLIC CHOICE III, at 483 fig.20.1 (2003);
118. OLSON, supra note 37, at 22. This would not change the results significantly.
119. See Volokh, supra note 39, at 5-9.
120. That is, your personally optimal amount of advocacy. I have already assumed for the purpose of this Article that expenditure on advocacy is not socially optimal. See supra text accompanying note 33.
121. But see infra text accompanying notes 224-33.
122. This number and the other thresholds presented in this example are purely illustrative, but they are approximately what you get if the effectiveness of advocacy expenditures is determined by a function p(e) - the probability that expenditures of e dollars gets you the desired policy change - equal to the square root of e/(e+10,000), and the value of the policy change is V = $200 million. Mathematically, this means finding expenditure e to maximize αVp(e) - e, where a is the actor's market share. The numbers in the text are rounded to the nearest $100,000. The more exact numbers are $992,509.41 for a monopolist, $941,193.21 for a 90% duopolist, and $308,757.73 for a 10% duopolist. Thanks to Scientific WorkPlace for crunching the numbers.
123. This sort of public good, whose benefits are enjoyed in fixed proportions by different industry actors, is also called a "common good" (as opposed to a "pure public good," which is enjoyed in its entirety by everyone). See Jean-Marie Baland & Jean-Philippe Platteau, Economics of Common Property Management Regimes, in 1 HANDBOOK OF ENVIRONMENTAL ECONOMICS 127, 144-46, 150-61 (Karl-Göran Mäler & Jeffrey R. Vincent eds., 2003).
124. The figures are not drawn to scale.
125. A payment of $900,000 by someone else has the same effect as $900,000 from you, with the subtle yet crucial distinction that you keep your money.
126. They would not form a Nash equilibrium, to be exact. See MAS-COLELL ET AL., supra note 40, at 246-53;
127. VARIAN, supra note 40, at 265-68.
128. See MAS-COLELL ET AL., supra note 40, at 361-63;
129. VARIAN, supra note 40, at 420-23;
130. Baland & Platteau, supra note 49, at 152-53;
131. Sandeep Baliga & Eric Maskin, Mechanism Design for the Environment, in 1 HANDBOOK OF ENVIRONMENTAL ECONOMICS, supra note 49, at 305, 310;
132. Gene M. Grossman & Elhanan Helpman, Electoral Competition and Special Interest Politics, 63 REV. ECON. STUD. 265, 282, 284 (1996);
133. see also Oakland, supra note 40, at 486-91, 514-15. This stark free-riding result occurs when utility is quasi-linear in income - that is, when the public good doesn't affect the marginal utility of income.
134. See MUELLER, supra note 46, at 23 (explaining the "kangaroo problem," a mathematically equivalent problem where there is not complete free riding because utilities are not assumed quasi-linear). Quasi-linearity is a reasonable assumption with business firms, though not necessarily with individuals, whose marginal utility of consumption may be enhanced by higher levels of, say, environmental protection or national defense. Quasi-linearity seems defensible here, since prison providers are unlikely to get more enjoyment out of $1 if there is a more beneficial incarceration policy.
135. OLSON, supra note 37, at 29 (italics and footnote omitted);
136. see TERRY M. MOE, THE ORGANIZATION OF INTERESTS 24-26 (1980) (explaining Olson's approach and containing similar diagrammatic exposition as herein).
137. Recall that "zero economic profits" does not mean "zero profits." "Zero economic profits" means that no one is making higher profits than they could expect to make elsewhere; that is, they are indifferent between running the business they have and putting their money in the stock market. See infra text accompanying note 69.
138. See Section IV.D infra.
139. But see Pecorino, supra note 46, at 657-58 (arguing that the assumption that a more concentrated industry can more easily overcome its collective action problems may not always be true);
140. Kai-Uwe Kühn, How Market Fragmentation Can Facilitate Collusion (Ctr. for Econ. Policy Research Discussion Paper No. 5948, 2006).
141. See Kevin B. Grier et al., The Industrial Organization of Corporate Political Participation, 57 S. ECON. J. 727, 729-30 (1991).
142. See, e.g., Sam Peltzman, Toward a More General Theory of Regulation, 19 J.L. & ECON. 211, 223-24 (1976) (stating that regulation is more likely in competitive or monopolistic industries than in an oligopolistic industry).
143. Kevin B. Grier et al., The Determinants of Industry Political Activity, 1978-1986, 88 AM. POL. SCI. REV. 911, 918 & tbl.3, 919 (1994).
144. Grier et al., supra note 58, at 735 & tbl.III, 736.
145. See Dolovich, supra note 25, at 523-24;
146. infra text accompanying note 123.
147. Three Strikes laws are types of sentence-enhancing laws. California's Three Strikes law, for instance, mandates life imprisonment for convicted felons who were twice previously convicted of two or more "serious" or "violent" felonies. California's scheme is described in Ewing v. California, 538 U.S. 11, 14-17 (2003).
148. Truth in sentencing laws require that persons convicted of violent crimes serve at least 85% of their sentence. See Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. § 13704 (2000).
149. On why these are the two relevant actors, see infra Part III.A.
150. I provide more detailed, though informal, derivations of these numbers elsewhere. See Volokh, supra note 39, at 13-18.
151. See, e.g., Meredith Kolodner, Private Prisons Smiling over Illegal Immigration, INT'L HERALD TRIB., July 20, 2006, at 12.
152. JOSEPH T. HALLINAN, GOING UP THE RIVER: TRAVELS IN A PRISON NATION 177-78 (2001);
153. Dolovich, supra note 25, at 493;
154. Sam Howe Verhovek, Operators Are Not Worried by Ruling, N.Y. TIMES, June 24, 1997, at B10.
155. See, e.g., MAS-COLELL ET AL., supra note 40, at 335;
156. VARIAN, supra note 40, at 221.
157. For simplicity, and because privatization critics treat pro-incarceration lobbying as profit-maximizing activity, I abstract here from agency problems within the firm. I apologize to corporations scholars. See Michael C. Jensen & William H. Meckling, Theory of the Firm: Managerial Behavior, Agency Costs and Ownership Structure, 3 J. FIN. ECON. 305 (1976).
158. I abstract away from any agency problems within the union and tentatively assume that a union is a faithful representative of workers' interests. However, the idea that unions faithfully represent their members has been forcefully critiqued. See Harry G. Hutchinson, A Clearing in the Forest: Infusing the Labor Union Dues Dispute with First Amendment Values, 14 WM. & MARY BILL RTS. J. 1309 (2006);
159. Joe Knollenberg, The Changing of the Guard: Republicans Take on Labor and the Use of Mandatory Dues or Fees for Political Purposes, 35 HARV. J. ON LEGIS. 347 (1998);
160. Stewart J. Schwab, Union Raids, Union Democracy, and the Market for Union Control, 1992 U. III. L. REV. 367.
161. The union rents maximization hypothesis is admittedly an oversimplification of how unions work. See, e.g., Henry S. Farber, The Analysis of Union Behavior, in 2 HANDBOOK OF LABOR ECONOMICS 1039, 1041 (Orley Ashenfelter & Richard Layard eds., 1986) (arguing that, "[w]hile the union members and their leaders may be maximizers, it does not necessarily follow that the union, as an organization, has a well-defined objective function," but nonetheless concluding that "it is fruitful" to analyze unions as though they had such a well defined objective).
162. But the hypothesis is common in the labor economics literature and will have to do for a preliminary survey. See, e.g., GEORGE DE MENIL, BARGAINING: MONOPOLY POWER VERSUS UNION POWER 22 (1971);
163. John T. Addison & Barry T. Hirsch, Union Effects on Productivity, Profits, and Growth: Has the Long Run Arrived?, 7 J. LABOR ECON. 72, 84 (1989);
164. Guillermo Calvo, Urban Unemployment and Wage Determination in LDC's: Trade Unions in the Harris-Todaro Model, 19 INT'L ECON. REV. 65, 68 (1978);
165. Steve Dowrick & Barbara J. Spencer, Union Attitudes to Labor-Saving Innovation: When Are Unions Luddites?, 12 J. LABOR ECON. 316, 329 (1994);
166. Giovanni de Fraja, Unions and Wages in Public and Private Firms: A Game-Theoretic Analysis, 45 OXFORD ECON. PAPERS 457, 459-60 (1993);
167. K.C. Fung, Rent Shifting and Rent Sharing: A Re-Examination of the Strategic Industrial Policy Problem, 28 CAN. J. ECON. 450, 452 (1995);
168. Barry T. Hirsch & Kislaya Prasad, Wage-Employment Determination and a Union Tax on Capital: Can Theory and Evidence Be Reconciled?, 48 ECON. LETTERS 61, 64 & n.5;
169. Andrew J. Oswald, The Economic Theory of Trade Unions: An Introductory Survey, 87 SCAND. J. ECON. 160, 162 (1985)
170. [hereinafter Oswald, Economic Theory];
171. John Pencavel, Wages and Employment Under Trade Unionism; Microeconomic Models and Macroeconomic Applications, 87 SCAND. J. ECON. 197, 201-02 (1985);
172. Sherwin Rosen, Unionism and the Occupational Wage Structure in the United States, 11 INT'L ECON. REV. 269, 269-70 (1970).
173. But see JOHN T. DUNLOP, WAGE DETERMINATION UNDER TRADE UNIONS 41 (1950) (calling the rent maximization objective "analytically] interest[ing]" but questioning its empirical relevance).
174. Pencavel, supra, argues that the rent maximization approach is appropriate if the union redistributes income from employed to unemployed workers so as to equalize incomes.
175. Rent maximization is a special case of certain other " utilitarian" or "democratic" objective functions, see, e.g., Alison Booth, A Public Choice Model of Trade Union Behaviour and Membership, 94 ECON. J. 883, 888 (1984);
176. Alan A. Carruth & Andrew J. Oswald, On Union Preferences and Labour Market Models: Insiders and Outsiders, 97 ECON. J. 431, 433 (1987);
177. Oswald, Economic Theory, supra, at 163-64;
178. Andrew J. Oswald, The Microeconomic Theory of the Trade Union, 92 ECON. J. 576, 584 (1982);
179. Pencavel, supra, at 200, when the utility of money is linear,
180. see Farber, supra, at 1060-61;
181. Oswald, Economic Theory, supra, at 165.
182. It is also a special case of objectives in Dowrick & Spencer, supra, at 335;
183. see also James N. Dertouzos & John H. Pencavel, Wage and Employment Determination Under Trade Unionism: The International Typographical Union, 89 J. POL. ECON. 1162, 1169 (1981);
184. Denise J. Doiron, Bargaining Power and Wage-Employment Contracts in a Unionized Industry, 33 INT'L ECON. REV. 583, 590 (1992);
185. Farber, supra, at 1061;
186. Alan Manning, How Robust Is the Microeconomic Theory of the Trade Union?, 12 J. LABOR ECON. 430, 436 (1994);
187. John H. Pencavel, The Trade-Off Between Wages and Employment in Trade Union Objectives 13 (Nat'l Bureau of Econ. Research, Working Paper No. 870, 1982).
188. One cannot know the benefit of being in a public corrections officers union without having a baseline of comparison. In principle, this should be the benefit that union members would be enjoying if not for the union. In this but-for hypothetical, the corrections officers might be private corrections officers making a market wage, or they might take jobs elsewhere. I use private sector corrections officers' wages as the baseline of comparison because it is the best available estimate of public sector corrections officers' next best option.
189. See Volokh, supra note 39, at 13-18.
190. Indeed, recall the discussion of "advocacy-minimizing breakups." See supra text accompanying note 56. Splitting up the industry reduces the total amount of advocacy. If the private splinter firm enjoys much less benefit from a prison project than the public incumbent-for instance, because, being subject to a more competitive regime, its profits are lower-the advocacy-minimizing breakup of the industry may be very heavily skewed toward privatization, much more than current privatization levels. This would mean not only that current levels of privatization have decreased industry advocacy, but that there is a long way yet to go before the absolute minimum is reached.
191. See Volokh, supra note 39, at 9-12;
192. infra Part IV.B-D.
193. See SARABI & BENDER, supra note 30, at 21.
194. Id.
195. Savas, supra note 31, at 898.
196. See RICHARD A. BERK ET AL., A MEASURE OF JUSTICE: AN EMPIRICAL STUDY OF CHANGES IN THE CALIFORNIA PENAL CODE, 1955-1971, at 158 (1977).
197. JOHN M. WYNNE, JR., NAT'L INST, OF LAW ENFORCEMENT & CRIMINAL JUSTICE, U.S. DEP'T OF JUSTICE, PRISON EMPLOYEE UNIONISM: THE IMPACT ON CORRECTIONAL ADMINISTRATION AND PROGRAMS 214-17 (1978).
198. See Center on Juvenile & Criminal Justice, Political Power of the California Correctional Peace Officers Association, http://www.cjcj.org/cpp/ political_power.php;
199. see also ADRIAN T. MOORE, REASON FOUNDATION, PRIVATE PRISONS: QUALITY CORRECTIONS AT A LOWER COST 33-34 (1998).
200. See Dan Pens, The California Prison Guards' Union: A Potent Political Interest Group, in THE CELLING OF AMERICA: AN INSIDE LOOK AT THE U.S. PRISON INDUSTRY 134, 135 (Daniel Burton-Rose et al eds., 1998).
201. See Center on Juvenile & Criminal Justice, supra note 78.
202. Id.
203. See Pens, supra note 81, at 137;
204. Center on Juvenile & Criminal Justice, supra note 82.
205. Center on Juvenile & Criminal Justice, supra note 82;
206. Drug Policy Alliance, California Proposition 36: The Substance Abuse and Crime Prevention Act of 2000, http://www.prop36.org.
207. See Center on Juvenile & Criminal Justice, supra note 82; Crime Victims United of California, About CVUC, http://www. crimevictimsunited.com;
208. Doris Tate Crime Victims Bureau, About Doris Tate, http://www.doristate. com.
209. See Jenifer Warren, Guards Union Is Giving Prisons Chief Hard Time, L.A. TIMES, Nov. 15, 2004, at A1;
210. Institute of Governmental Studies, University of California, Berkeley, Proposition 66: Limitation on "Three-Strikes" Law (Dec. 2004), http://www.igs.berkeley.edu/library/htThreeStrikesProp66.htm.
211. Ed Mendel, Governor May Act on Crisis in Prisons, SAN DIEGO UNION-TRIB., Sept. 2, 2006, at A1.
212. In 2006, to "'give the system a breather,'" the California Correctional Peace Officers Association (CCPOA) endorsed releasing "a select group of inmates convicted of nonviolent crimes who had behaved while behind bars" 30 days early. Mark Martin, Call for New Prisons, Shorter Sentences to Ease Crowding, S.F. CHRON., May 24, 2006, at A1.
213. Pens, supra note 81, at 137.
214. Cf. Schlosser, supra note 10, at 55 ("[I]n California . . . the correctional trends of the past two decades have converged and reached extremes.").
215. See LOGAN, supra note 31, at 157;
216. WYNNE, supra note 79, at 186, 195, 227;
217. Bennett & Kuttner, supra note 35, at 38.
218. Cf. infra text accompanying note 121 (stating that private contributions also much higher in California).
219. See Florida Police Benevolent Association, Florida PBA Chapters: State Correctional Officers, http://www.scopba.org/welcome.htm.
220. See Aaron Deslatte, Crist Courts Voters with Positive Focus, FLA. TODAY, Aug. 16, 2006, at A1;
221. David Wasson, Bush Lands Police Union Support, TAMPA TRIB., July 12, 2002, at 9;
222. Letter from Charlie Crist to Jim Baiardi, President, State Correctional Officers Chapter (Mar. 15, 2006), reprinted in Letters, FLA. PBA CORRECTIONS REV., Apr. 2006, at 7, available at http://www.flpba.org/pdf/corrections%20review/Corrections%20Review%2004- 2006.pdf.
223. See Rob Gurwitt, The Growing Clout of Prison Guards, GOVERNING, Dec. 1991, at 37.
224. Kathleen Murphy, Labor Helps Patakis [sic] Re-election Battle, STATELINE.ORG, May 20, 2002, http://www.stateline.org/live/ ViewPage.action?siteNodeId=136&contentId= 14817.
225. See Julie Falk, Fiscal Lockdown Part II: Will State Budget Cuts Weaken the Prison-Industrial Complex-Or Strengthen It?, DOLLARS & SENSE, Nov./Dec. 2003, at 32.
226. Press Release, Sen. Sheldon Whitehouse, Rhode Island Brotherhood of Correctional Officers Endorses Whitehouse (Aug. 25, 2006) (on file with author).
227. See, e.g., Gregg M. Miliote, Correction Officers Back Sutter, HERALD NEWS (Fall River, Mass.), Aug. 23, 2006, http://www.heraldnews.com/site/index.cfm?newsid= 17097791.
228. See Florida Police Benevolent Association, About Us, http://www.flpba.org/aboutus.php.
229. See Michael Pollak, New Jersey Daily Briefing: Police Back Whitman, N.Y. TIMES, Oct. 1, 1997, at B1;
230. New Jersey State Policemen's Benevolent Association, We Walk NJ's Toughest Beat!: New Jersey State P.B.A. Corrections Officers' Committee, http://www.njspba.com/co.htm.
231. See sources cited supra note 95 and accompanying text.
232. These states include Connecticut, Illinois, Kansas, Minnesota, New York, Oregon, Pennsylvania, Texas, and Wisconsin. AFSCME also represents Corrections Health Services medical personnel in Florida.
233. See American Federation of State, County, and Municipal Employees (AFSCME), Jobs We Do: ACU Local Web Sites, http://www.afscme.org/workers/5846. cfm.
234. See AFSCME, Jobs We Do: Corrections, http://www.afscme.org/ workers/67.cfrn.
235. Wynne argues that AFSCME has explicitly opposed deinstitutionalization and community-based programs in the past, see WYNNE, supra note 79, at 228, but the evidence for this is an argument against deinstitutionalization of patients from mental hospitals, not regular criminals from prisons.
236. See HENRY SANTIESTEVAN, AM. FED. OF STATE, COUNTY, & MUN. EMPLOYEES, DEINSTITUTIONALIZATION: OUT OF THEIR BEDS AND INTO THE STREETS 5-12 (AFSCME, Feb. 1975). More recently, AFSCME lobbied in favor of the Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. § 13701-13726c (2000).
237. See AFSCME, Jobs We Do: AFSCME Corrections United: 10 Years of Federal Legislative Advocacy, http://www.afscme.org/workers/6590.cfm. The Act includes several new criminal provisions,
238. e.g., id. §§ 110102-110103, 110201, 110401, 250002; enhanced penalties,
239. e.g., id. §§ 40111, 90102, 110501, 130001, 150001, 160001, 320101-320106; a federal Three Strikes provision,
240. id. § 70001; victims' rights provisions,
241. id. § 230101; and grants for states that adopt "truth-in-sentencing" laws,
242. id. § 20102. Though civil libertarians at the time opposed it because of its emphasis on incarceration,
243. see, e.g., Laura Murphy Lee, The Senate's Misconceived Crime Bill, WASH. TIMES, Apr. 14, 1994, at A19 (explaining the ACLU's position), the Act is so wide-ranging that AFSCME's support is not a clean case of union pro-incarceration lobbying. AFSCME attributes its support in part to the Act's grants for correctional facilities, Violent Crime Control and Law Enforcement Act of 1994 § 20101, corrections officer training provisions,
244. id. § 20418, and enhanced penalties for offenses against corrections officers,
245. e.g., id. § 60015.
246. See supra AFSCME, Jobs We Do: AFSCME Corrections United: 10 Years of Federal Legislative Advocacy.
247. See Dwight F. Blint, Union Faults Sending More Inmates out of State, HARTFORD COURANT, May 31, 2003, at B5;
248. Connecticut Hires Firm to Teach Nonviolent Offenders, CORRECTIONAL EDUC. BULL., Jan. 19, 2004.
249. See AFSCME, Supporting the Legalization of Medical Marijuana, Res. No. 93, 37th Annual Int'l Convention, Aug. 7-11, 2006, http://www.afscme.org/resolutions/11367.cfrn. AFSCME is also involved with the National Council of State Legislatures (NCSL);
250. see NCSL, NCSL Foundation for State Legislatures: Board of Directors 2007-2008, nttp://www.ncslorg/public/FSL/FSLBoard.htm, which does not take a notably proincarceration line,
251. see, e.g., NCSL, 2007-2008 Policies for the Jurisdiction of the: Law and Criminal Justice Committee, http://www.ncsl.org/statefed/LAWANDJ.HTM (critiquing the "competition to escalate punishments and build more prisons" resulting from "federal jurisdiction over crimes also covered under state law").
252. Ray Carter, Union Leader Says State Prisons Understaffed, J. REC. LEGIS. REP., Aug. 7, 2003.
253. GEO Group, Form 10-K at 23 (Mar. 10, 2004).
254. Id. at22.
255. See, e.g., GEO Group, Form S-4 at 28 (Nov. 10, 2003);
256. see also Vargas-Vargas, supra note 31, at 76 n.212 (citing various other sources). A CCA executive also said the 1994 federal crime bill was "very favorable to us,"
257. see Paulette Thomas, Making Crime Pay: Triangle of Interests Creates Infrastructure to Fight Lawlessness, WALL ST. J., May 12, 1994, at A1, but this is ambiguous evidence that private prison firms support incarceration-AFSCME, which represents corrections officers in many states, actually lobbied in favor of that crime bill, but it attributed its support to the bill's grants for correctional facilities, corrections officer training provisions, and enhanced penalties for offenses against corrections officers.
258. See supra note 106.
259. See, e.g., SARABI & BENDER, supra note 30, at 7-18.
260. See American Legislative Exchange Council, http://www.alec.org;
261. see also infra text accompanying notes 130-41.
262. See, e.g., SARABI & BENDER, supra note 30, at 7, 13-14.
263. Dolovich, supra note 25, at 524, 529;
264. Ahmed A. White, Rule of Law and the Limits of Sovereignty: The Private Prison in Jurisprudential Perspective, 38 AM. CRIM. L. REV. 111, 142 (2001).
265. See Alfred C. Aman, Jr., Privatization, Prisons, Democracy, and Human Rights: The Need to Extend the Province of Administrative Law, 12 IND. J. GLOBAL LEGAL STUD. 511, 544 (2005);
266. Douglas C. McDonald, Public Imprisonment by Private Means, 34 BRIT. J. CRIMINOLOGY 29, 43 (1994).
267. RICHARD W. HARDING, PRIVATE PRISONS AND PUBLIC ACCOUNTABILITY 96 (1997). In the related context of alternative-to-incarceration programs, Harding also mentions an instance, from Australia, of lobbying by nonprofit providers of a "residential Wilderness program, modeled on the America Vision Quest scheme," for juveniles.
268. See id. at 96-97
269. (citing RICHARD W. HARDING, AUSTL. INST, OF CRIMINOLOGY, PRIVATE PRISONS IN AUSTRALIA 3 (1992)). However, though Harding refers to "advocacy" by the proponents of the program, he does not cite any instances of such advocacy.
270. See, e.g., HALLETT, supra note 31, at 141;
271. SHICHOR, supra note 28, at 235-36;
272. Dolovich, supra note 25, at 525;
273. Low, supra note 31, at 45;
274. Savas, supra note 31, at 898;
275. Schoen, supra note 31, at A31;
276. White, supra note 116, at 142. But not all commentators hedge their statements.
277. See Barkow, Administering Crime, supra note 31, at 729;
278. Barkow, Our Federal System, supra note 31, at 125 (noting that prison firms "often lobby for longer terms");
279. George, supra note 31, at 54, 57 (arguing that firms' financial interest "will make them a lobby group for increased sentences");
280. Vargas-Vargas, supra note 31, at 75 n.209 (private firms are "powerful . . . in influencing draconian social policies").
281. Freeman, supra note 31, at 1349 n.249,
282. cites Developments, supra note 36, at 1872, for the proposition that "the private prison industry . . . lobb[ies] for stiffer criminal penalties," but in fact Developments only states that private prisons "may" do so and that the claim that they do is "plausible." Several authors draw a connection between private prisons' supposed advocacy today and the nineteenth-century experience of convict leasing.
283. See SARABI & BENDER, supra note 30, at 11;
284. PRESBYTERIAN CHURCH (USA), supra note 31, at 20;
285. Beverly A. Smith & Frank T. Morn, The History of Privatization in Criminal Justice, in PRIVATIZATION IN CRIMINAL JUSTICE: PAST, PRESENT, AND FUTURE 3, 17 (David Shichor & Michael J. Gilbert eds., 2001);
286. White, supra note 116, at 128-29;
287. Wray, supra note 31, at 5. For the nineteenth-century history,
288. see MATTHEW J. MANCINI, ONE DIES, GET ANOTHER 24, 41 (1996);
289. DAVID M. OSHINSKY, "WORSE THAN SLAVERY": PARCHMAN FARM AND THE ORDEAL OF JIM CROW JUSTICE 40 (1996);
290. ALRUTHEUS AMBUSH TAYLOR, THE NEGRO IN TENNESSEE, 1865-1880, at 43 (1941);
291. GEORGE WASHINGTON WILLIAMS, HISTORY OF THE NEGRO RACE IN AMERICA 415-16 (photo. reprint 1968) (1883);
292. William Cohen, Negro Involuntary Servitude in the South, 1865-1940: A Preliminary Analysis, 42 J. S. HIST. 31, 50-51 (1976). But how much this history tells us about present-day privatization is disputed.
293. See LOGAN, supra note 31, at 215-18;
294. Dolovich, supra note 25, at 454;
295. Alexis M. Durham III, The Future of Correctional Privatization: Lessons from the Past, in PRIVATIZING CORRECTIONAL INSTITUTIONS, supra note 31, at 33, 45-48;
296. Rosky, supra note 6, at 912-13.
297. See supra notes 81-83.
298. See, e.g., SARABI & BENDER, supra note 30, at 10 (merely listing total contributions to candidates as evidence that prison firms fuel the "incarceration boom").
299. Even mere pro-privatization advocacy may raise some concerns. See Jack M. Beermann, Privatization and Political Accountability, 28 FORDHAM URB. L.J. 1507, 1522 (2001);
300. Oliver Hart et al., The Proper Scope of Government: Theory and an Application to Prisons, 112 Q.J. ECON. 1127, 1144-47 (1997) (arguing that corruption and patronage may skew the decision whether to privatize in a pro- or anti-privatization direction).
301. See Dolovich, supra note 25, at 523-24;
302. Rosky, supra note 6, at 955. Some commentators' failure to draw the distinction that Dolovich draws between pro-privatization and pro-incarceration advocacy (and to draw the similar distinction between pro-funding and pro-incarceration lobbying) leads to some interesting blindnesses.
303. See infra note 151.
304. See Association of Private Correctional & Treatment Organizations, http://www.apcto.org.
305. E-mail from Paul Doucette, Executive Director, Ass'n of Private Correctional & Treatment Orgs. (Oct. 13, 2006) (on file with author). Doucette continues: "Om members' financial success is driven not by the number of detainees or inmates they confine, but rather by the superior service and savings they provide to their contracted clients." See also Paul Doucette, Letter to the Editor, WICHITA EAGLE, Apr. 1, 2006, at A2.
306. Paul Doucette, Letter to the Editor, DENV. POST, Oct. 2, 2006, at B7.
307. See Paul Doucette, Ohio Prisons Are Full, CINCINNATI POST, Aug. 8, 2006, at A9.
308. See Paul Doucette, Letter to the Editor, FT. PIERCE TRIB., May 10, 2006, at A6
309. [hereinafter Doucette, FT. PIERCE TRIB. letter];
310. see also Paul Doucette, Letter to the Editor, In Juvenile Justice, Florida Gets Just What It Pays for, PALM BEACH POST, Oct. 1, 2006, at 4E
311. [hereinafter Doucette, In Juvenile Justice];
312. Paul Doucette, Letter to the Editor, Private Providers Agree: Bolster Juvenile Spending, PALM BEACH POST, Apr. 25, 2006, at 15 A.
313. See Doucette, In Juvenile Justice, supra note 128, at 4E;
314. Doucett, FT. PIERCE TRIB. letter, supra note 128, at A6.
315. See PRICE, supra note 31, at 74-75, 131-36;
316. Dolovich, supra note 25, at 526-29;
317. Silja J. A. Talvi, Follow the Prison Money Trail, IN THESE TIMES, Sept. 4, 2006.
318. Wackenhut Corrections Corp. changed its name to The GEO Group in November 2003 under the terms of a share purchase agreement with another company. See GEO Group, Milestones, http://www.thegeogroupinc.com/milestones.asp.
319. See SARABI & BENDER, supra note 30, at 4
320. (citing Inside ALEC newsletter, Sept. 1999).
321. See ALEC, Criminal Justice and Homeland Security Task Force, http://www.alec.org/2/criminal-justice.html (Brad Wiggins of CCA presented at the Dec. 14, 2002 Task Force meeting.);
322. see also SARABI & BENDER, supra note 30, at 4;
323. Karen Olsson, Ghostwriting the Law, MOTHER JONES, Sept./Oct. 2002, at 17. Dolovich cites Olsson as stating that CCA participated in "that session which produced ALEC's model truth-in-sentencing bill,"
324. see Dolovich, supra note 25, at 528 & n.360.
325. But Olsson states only that CCA was "[o]ne of the members of the task force that drafted the bill" Olsson, supra at 17. (The task force that drafted the bill is the Criminal Justice Task Force.
326. See ALEC, Criminal Justice and Homeland Security Model Legislation, http://www.alec.org/6/criminal-justice.html;
327. ALEC, supra.) This can be read as merely stating mat CCA was a participant in that Task Force, not that it had any role in that particular bill.
328. See ALEC, Criminal Justice and Homeland Security Model Legislation, supra note 133.
329. For instance, ALEC doesn't disclose the current membership of its Task Forces. See Scott Blake, CCA Dominates Prison Privatization, FLA. TODAY, June 13, 2004, at 8.
330. Dolovich, supra note 25, at 529;
331. see also Olsson, supra note 133.
332. See SARABI & BENDER, supra note 30, at 4.
333. See ALEC, Criminal Justice and Homeland Security Task Force, supra note 133 (Dec. 11, 2003).
334. See ALEC, Criminal Justice and Homeland Security Model Legislation, supra note 133.
335. See ALEC, Criminal Justice and Homeland Security Task Force, supra note 133.
336. (Brad Wiggins of CCA presented Developments, supra note 36, at the Dec. 14, 2002 Task Force meeting.).
337. Interview with Louise Gilchrist, Vice President of Marketing and Communications, Corrections Corp. of America (Sept. 15, 2006);
338. see also Corrections Corp. of America, The Corrections Industry: Myths vs. Reality in Private Corrections: The Truth Behind the Criticism, http://www.correctionscorp.com/myths.html
339. Gilchrist interview, supra note 141.
340. See Corrections Corp. of America, Why Do Business with CCA, http://www.correctionscorp.com/salesteam.html.
341. Id.
342. Crime Prevention and Criminal Justice Reform Act: Hearing Before the Subcomm. on Crime and Criminal Justice, 103d Cong. (1994) (statement of Michael Quinlan), available at 1994 WL 214215.
343. My search was not systematic, since I do not know how one would systematically search for evidence of industry pro-incarceration advocacy. But I have investigated claims that such advocacy does occur, when I have found them, by following the footnotes and checking whether the source was really pointing to some hard evidence of such advocacy (rather than merely evidence of generalized advocacy, pro-privatization advocacy, or an analyst's fear of such advocacy).
344. Overhauling the Nation's Prisons: Hearing on the Violent Crime Control and Law Enforcement Act of 1994 Before the S. Comm. on the Judiciary, 104th Cong. (1995) (statement of Timothy P. Cole), 1995 WL 449225.
345. Id.
346. Id.
347. Id. at Attachment 1.
348. Interestingly, the anti-privatization source from which I learned about the Cole testimony characterized it fairly innocuously, as testimony in favor of amendments "that authorized the expenditure of $10 billion to construct and repair state prisons" - with the author only focusing on the generalized desire for funding. Ken Silverstein, America's Private Gulag, in THE CELLING OF AMERICA, supra note 81, at 156, 159.
349. See supra note 45, where I suggest that private contractors may be more subject to a public relations backlash if they lobby to change substantive policy in an area traditionally heavily associated with state functions, like prisons or the military. The fear of such a backlash may make private contractors do their industry-expanding lobbying more secretly, or it may make them not engage in industry-expanding lobbying at all. I also suggest in that note that public unions may be playing a broader game, where there is more to be gained than achieving results in the political market. Part of the union leadership's goal is to mobilize the union members, and this arguably requires more communication with the members than the board of a corporation would necessarily disclose to the public or its stockholders. Finally, there are statutory and constitutional reasons-related to unions' democratic structure and the First Amendment rights of union members-for why unions must be more open about their advocacy than corporations.
350. See infra text accompanying notes 190-92.
351. Cf. Wayne, supra note 7 ("The contractors are saving their gunpowder for other challenges.").
352. The same goes for participation in ALEC. One pays to be on the Task Force, but when the time comes to influence the content of model legislation, one of two things might happen. The legislation might have the desired form anyway without any effect from the additional participation. (This is fairly likely in a conservative group like ALEC.) Or it would not have had the desired form. In which case, even if one were participating in the process, which CCA denies, see supra text accompanying note 141, one would need to spend some political capital to try to help bring the change about. It is reasonable to think that a firm would rather spend its political capital on advocating privatization, which has less of a public-good component.
353. See, e.g., OLSON, supra note 37, at 72-73 (stating that unions offer selective incentives like insurance, seniority privileges, or preferential treatment in handling grievances);
354. E.P. THOMPSON, CUSTOMS IN COMMON 467, 519-21 (1991) (providing examples of "rough music," which is directed hostility against workers who offended community norms);
355. Eric A. Posner, The Regulation of Groups: The Influence of Legal and Nonlegal Sanctions on Collective Action, 63 U. CHI. L. REV. 133, 177 (1996);
356. cf. ÉMILE ZOLA, GERMINAL, pt.5, chs. 3-4, at 317-36 (Garnier-Flammarion 1968) (1885);
357. MATEWAN (Cinecom Entertainment Group et al. 1987) (showing unions using a combination of shame and violence);
358. NEWSIES (Walt Disney Pictures et al 1992) (same).
359. See CAL. GOV'T CODE § 3502.5 (authorizing agency shop agreements);
360. Lehnert v. Ferris Faculty Ass'n, 500 U.S. 507, 511 (1991) ("Michigan's Public Employment Relations Act... which applies to faculty members of a public educational institution in Michigan, permits a union and a government employer to enter into an 'agency-shop' arrangement under which employees within the bargaining unit who decline to become members of the union are compelled to pay a 'service fee' to the union.");
361. Abood v. Detroit Bd. of Educ., 431 U.S. 209, 211 (1977) (similar);
362. OLSON, supra note 37, at 71;
363. Memorandum of Understanding, Bargaining Unit 6: Agreement Between State of California and California Correctional Peace Officers Association (CCPOA), § 3.02 (1999), http://www.dpa.ca.gov/collbarg/contract/Unit06contract99.htm (establishing agency shop);
364. see also Robert G. Gregory & Jeff Borland, Recent Developments in Public Sector Labor Markets, in 3C HANDBOOK OF LABOR ECONOMICS 3573, 3586-87 (Orley Ashenfelter & David Card eds., 1999) (discussing why unionization may be more widespread in the public than in the private sector).
365. See SHICHOR, supra note 28, at 198;
366. Dolovich, supra note 25, at 501;
367. see also Ronald G. Ehrenberg & Joshua L. Schwarz, Public-Sector Labor Markets, in 2 HANDBOOK OF LABOR ECONOMICS, supra note 71, at 1219, 1219-22, on how unionization is greater in the public than in the private sector.
368. There are two related effects at work here. Non-unionized workers probably (1) find it hard to organize for lobbying purposes and (2) find it hard to organize for wage purposes (which means they are probably making market wages). If they could organize, they would be able to lobby effectively, but that by itself would not make them want to lobby. If a worker, once unemployed, can quickly find another job paying the same, he will not care as much about lobbying for job security. What gives unions a good incentive to lobby is that, in addition to increasing job security, they can increase their wages above market levels through organizing. Their job gives them special benefits and, as a result, they care more deeply about their job security. Indeed, we do observe strong private-sector unions lobbying for the welfare of their industries. For instance, the United Mine Workers joined the coalition challenging EPA's air-quality standards in Whitman v. American Trucking Associations, 531 U.S. 457 (2001).
369. See Petition for a Writ of Certiorari at ii, Browner v. Am. Trucking Ass'ns, 529 U.S. 1129 (No. 99-1257) (Jan. 17, 2000), 2000 WL 33979605 ;
370. see also Brief of the Int'l Bhd. of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers et al., AFL-CIO, & the Elec. Reliability Coordinating Council as Amici Curiae Supporting Respondents at 13-14, Envt'l Defense v. Duke Energy Corp., 127 S. Ct. 1423 (2007) (No. 05-848), 2006 WL 2689786.
371. See supra text accompanying note 71.
372. See Ehrenberg & Schwartz, supra note 158, at 1258 & n.51.
373. See, e.g., Schwab, supra note 71, at 380-81.
374. See, e.g., Camille Graham Camp & George M. Camp, THE CORRECTIONS YEARBOOK 2000: ADULT CORRECTIONS 91-92 (2000) (listing privately run community correctional facilities in Arizona, D.C., Florida, Maine, and North Carolina);
375. COLO. LEGISLATIVE COUNCIL, RESEARCH PUB. NO. 487, AN OVERVIEW OF THE COLORADO ADULT CRIMINAL JUSTICE SYSTEM 137 (2001), available at http://www.state.co.us/gov_dir/ leg_dir/lcsstaff/2001/research/01CriminalCorrections.htm (noting that twenty-six of thirty-two community correctional facilities are privately operated);
376. LITTLE HOOVER COMM'N, REPORT NO. 144, BEYOND BARS: CORRECTIONAL REFORMS TO LOWER PRISON COSTS AND REDUCE CRIME (1998), available at http://www.lhc.ca. gov/lhcdir/144/Private.html (listing privately run community correctional facilities in California);
377. Cornell Companies Adult Services: Community-Based Corrections Services, http://www.cornellcompanies.com/ page.cfm?ctid= 1#community;
378. GEO Group, Fort Worth Community Corrections Facility, http://www.thegeogroupinc.com/northamerica.asp?fid=100.
379. See also LOGAN, supra note 31, at 160-61.
380. See, e.g., WYNNE, supra note 79, at 194-95;
381. Bennett & Kuttner, supra note 35, at 36;
382. see also Jeanne S. Woodford, Hard Time: Why I Quit the Prison System, L.A. TIMES, Aug. 6, 2006, at Ml.
383. But see Press Release, Florida Department of Corrections, Governor's Budget Recommendations Help Department of Corrections Fight Crime (Jan. 16, 2001), available at http://www.dc.state.fl.us/secretary/press/ 2001/budget5.html (an exception to the trend of DOCs favoring alternatives to incarceration).
384. Richard F. Allen, Inflow of Inmates Must Be Slowed, MONTGOMERY ADVERTISER, July 17, 2006, at A5.
385. Rex W. Huppke, Rehabilitation or Recycling?, CHI. TRIB., Mar. 12, 2006, at 1.
386. See Memorandum from Patricia L. Caruso, Director of the Mich. Dep't of Corr., to Sen. Alan L. Cropsey & Rep. Jack Brandenberg (Feb. 1, 2006), available at http://www.michigan.gov/documents/02-01-06_-
387. Ted Sullivan, Bozeman's Re-Entry Center Dedicated, BOZEMAN CHRON., reprinted in THE CORRECTIONAL SIGNPOST, Spring 2006, at 3, http://www.cor. state.mt.us/News/Newsletters/Spring2006.pdf;
388. see Bob Anez, Advisory Council Studies Array of Offender Services, THE CORRECTIONAL SIGNPOST, supra, at 9;
389. Kelly Speer, Community Corrections Grows to Meet Demand, THE CORRECTIONAL SIGNPOST, Winter 2006, at 7, http://www.cor.state.mt.us/News/Newsletters/Winter2006 Signpost.pdf.
390. N.M. Legislative Council Serv., Information Bulletin No. 6, http://legis.state.nm.us/LCS/lcsdocs/148229.pdf (Aug. 25, 2003).
391. ROBERT LEE GUY, N.C. DRV. OF CMTY. CORR., THE EVOLUTION OF COMMUNITY CORRECTIONS (2d ed. 2003), http://www.doc.state.nc. us/dcc/index.htm.
392. See Debra Jasper, Prison Expenses Straining Budget, CINCINNATI ENQUIRER, May 28, 2001, at 1A.
393. JEFFREY A. BEARD, PA. DEP'T OF CORR., ADMISSIONS, POPULATION, & RELEASES 5 (2006), available at http://www.cor.state.pa.us/ stats/lib/stats/population.pdf.
394. Prison Officials Want to Expand Work-Release, SEATTLE TIMES, Aug. 8, 2006, at B4.
395. Press Release, Gov. Jim Doyle, Governor Doyle Announces $616,000 for Alcohol and Drug Treatment and Diversion (Sept. 18, 2006) (on file with author); see also Falk, supra note 98, at 34.
396. See, e.g., WILLIAM A. NISKANEN, JR., BUREAUCRACY AND REPRESENTATIVE GOVERNMENT 36-42 (1971).
397. See Daryl J. Levinson, Empire-Building Government in Constitutional Law, 118 HARV. L. REV. 915, 932-34 (2005).
398. We are past the days when county sheriffs were paid according to their jail counts. Wray, supra note 31, at 6;
399. see also LOGAN, supra note 31, at 217;
400. Schlosser, supra note 10, at 64. More prisoners without more funding can also lead to political grief when combined with early-release requirements imposed by court orders as a result of overcrowding.
401. Cf. Sue Doyle, Proposal: Inmates to Serve 25% of Sentence, DAILY BREEZE (Torrance, Cal.), Aug. 21, 2006, at A1.
402. See, e.g., Richard Ferruccio, Presidents [sic] Message (2006), http://www.ribrotherhood.com/pdfs/MessageFromThePresident.pdf (Rhode Island union president calls the DOC and the State "our enemies" in the context of labor-related disputes); Richard Ferruccio, Presidents [sic] Message (2006), http://www.ri-brotherhood.com/pdfs/MessageFromThePresident2.pdf.
403. "Cooperation" is what economists mean when they say "collusion."
404. See supra note 131.
405. These numbers are taken from two sources from 1999 (which is why the shares are expressed as ranges). See JAMES R. MACDONALD & JAIMI GOODFRTEND, FIRST ANALYSIS SECURITIES CORP., FASC INDUSTRY OUTLOOK: OFFENDER MANAGEMENT: 1999, at 10 (1999), available at http://www.lib.uwo.ca/business/prison1999.pdf;
406. Stephen McFarland et al., Prisons, Privatization, and Public Values 6 (Dec. 2002) (unpublished paper prepared for Prof. Mildred Warner, Cornell University), available at http://government.cce.cornell.edu/doc/pdf/ PrisonsPrivatization.pdf (reprinting a table of market shares from Charles Thomas that is otherwise unavailable). Cornell has apparently grown since then.
407. See Michael Brush, Company Focus: 3 Prison Stocks Poised to Break Out, MSN MONEY, Jan. 5, 2005, http://moneycentral.msn.com/ content/P105034.asp (reporting a 12% market share for Cornell). GEO has grown slightly.
408. See GEO Group, Fast Facts About GEO, http://www.thegeogroupinc. com/facts.asp (28% share of U.S. market).
409. See supra text accompanying notes 68-69.
410. Note that there is an important difference between the total cooperation case and the other two cases (no cooperation or private-sector cooperation). In the other cases, the "largest" actor does all of the advocacy, and "largest" is determined by both per-prison benefits and industry shares. For example, even if per-prison profits were identical between the public and private sectors, a 10% actor would free ride off a 90% actor because the absolute amount of the benefits differ. But in the total cooperation case, it is only per-prison benefits that matter. For example, suppose per-prison benefits are the same - say $100 - and there are 100 prisons. Then, under monopoly public provision, total benefit is 100 × $100 = $10,000. Under a 10%-90% split, total benefit is (10 × $100) + (90 × $100), which is exactly the same. Likewise, under a 20%-80% split, total benefit is (20 × $100) + (80 × $100) - again exactly the same. On the other hand, if private sector benefits are, say, $50, then a 10%-90% split reduces total benefit to (10 × $50) + (90 × $100) = $9500; a 20%-80% split reduces it still further to (20 × $50) + (80 × $100) = $9000; and so forth. (This has a quite different implication for the advocacy-minimizing split, see supra Part II.C. Under total cooperation, the advocacy-minimizing level of privatization is either 0% or 100% - all the weight should go on the sector with the lowest per-prison benefits. Or, if the sectors have equal per-prison benefits, any split is equivalent.
411. See Volokh, supra note 39, at 59.)
412. See Ian Ayres, How Cartels Punish: A Structural Theory of Self-Enforcing Collusion, 87 COLUM. L. REV. 295, 296-327 (1987).
413. See supra text accompanying notes 124-29.
414. Coordinating industry lobbying strategies doesn't violate antitrust law. See, e.g., E. R.R. Presidents Conf. v. Noerr Motor Freight, 365 U.S. 127 (1961).
415. Cf. OLSON, supra note 37, at 36 & n.54.
416. See supra text accompanying notes 121, 130-34.
417. See PRICE, supranote 31, at 74;
418. SARABI & BENDER, supra note 30, at 9.
419. See supra text accompanying notes 73, 152-54.
420. This would not happen if auctions were nondiscretionary - for instance if the state were required to accept the lowest bid. But because governments have the flexibility to reject a low bid where a higher bid proposes more and better services, or where they have their doubts as to the trustworthiness of the bidder, see HARDING, supra note 118, at 75-79, there are enough "soft factors" that a firm's contributions may make a difference in whether it wins a bid.
421. See, e.g., James W. Friedman, A Non-Cooperative Equilibrium for Supergames, 38 REV. ECON. STUD. 1, 4-8 (1971).
422. On cooperation in auctions, see PAUL KLEMPERER, AUCTIONS: THEORY AND PRACTICE 28-29 & nn.75-77 (2004);
423. Jean-Jacques Laffont, Game Theory and Empirical Economics: The Case of Auction Data, 41 EUR. ECON. REV. 1, 25-26 (1997);
424. Martin Pesendorfer, A Study of Collusion in First-Price Auctions, 67 REV. ECON. STUD. 381, 384-88 (2000);
425. Paul Klemperer, Bidding Markets 16-22, 18 n.61 (UK Competition Comm'n Working Paper, 2005); Andreas Blume & Paul Heidhues, Modeling Tacit Collusion in Auctions (Sept. 2002) (unpublished manuscript, on file with the University of Pittsburgh).
426. On specific collusive mechanisms in auctions, see Daniel A. Graham & Robert C. Marshall, Collusive Bidder Behavior at Single-Object Second-Price and English Auctions, 95 J. POL. ECON. 1217, 1220-21 (1987);
427. R. Preston McAfee & John McMillan, Bidding Rings, 82 AM. ECON. REV. 579 (1992).
428. See supra Part II.C.
429. See MUELLER, supra note 46, at 478-79.
430. See, e.g., Michael Finnegan, Props. 57, 58 Big Items in Homestretch, L.A. TIMES, Mar. 2, 2004, at B1;
431. Michael Finnegan & Robert Salladay, Voters Reject Schwarzenegger's Bid to Remake State Government, L.A. TIMES, Nov. 9, 2005, at A1.
432. See, e.g., MUELLER, supra note 46, at 85-86. In assuming a stable identity of the median voter, I abstract away from voter participation issues.
433. See id. at 232-34.
434. See id. at 479;
435. Richard Ball, Opposition Backlash and Platform Convergence in a Spatial Voting Model with Campaign Contributions, 98 PUB. CHOICE 269, 273-74, 279 (1999);
436. Grossman & Helpman, supra note 53, at 273-74, 279.
437. This is not as obvious as it was in the previous models: the marginal benefit of advocacy expenditures is no longer guaranteed to be downward sloping over its whole range, so Figure 3 is not accurate for this case. Nonetheless, the largest actor's contributions still fall. See Volokh, supra note 39, at 7-8, 22-24.
438. See BERK ET AL., supra note 78, at 200.
439. See Volokh, supra note 39, at 9-10.
440. See supra text accompanying note 87.
441. See Institute of Governmental Studies, supra note 87.
442. See supra text accompanying note 85.
443. See National Families in Action, A Guide to Drug-Related State Ballot Initiatives: California Proposition 36 Proponents, http://www. nationalfamilies.org/guide/california36-endorsements.html
444. See supra notes 165-79.
445. See Volokh, supra note 39, at 9-10.
446. But cf. Andrew F. Daughety & Jennifer F. Reinganum, Appealing Judgments, 31 RAND J. ECON. 502, 523 (2000) (discussing concept of "complementarity");
447. xy ≥ 0, where ℓ is an analogous variable to the probability that the reform passes in this model);
448. George B. Shepherd, An Empirical Study of the Economics of Pretrial Discovery, 19 INT'L REV. L. & ECON. 245, 262 (1999) (discussing whether plaintiffs or defendants "counterpunch" in response to additional discovery by their adversary).
449. See, e.g., SARABI & BENDER, supra note 30, at v.
450. But see infra text accompanying notes 224-33.
451. In Dolovich's framework, punishment, which burdens one's "urgent interests," can only be justified when "interests of equal or greater urgency" (such as, presumably, potential victims' interests in safety) are served, and this balance must be struck "under fair deliberative conditions." Dolovich, supra note 25, at 515. Pro-incarceration advocacy violates this condition because it burdens people's urgent interests (their interest in liberty)
452. merely "in order that others might benefit financially." Id. at 515-16. Dolovich doesn't make this point, but it seems that under her framework, self-interested anti-incarceration advocacy is equally problematic: The interests of potential victims are sacrificed so that some (drug treatment providers) may benefit financially. Those victims' interests would have been protected (through incarceration) under fair deliberative conditions, so by hypothesis, they are of equal or greater urgency than the liberty interests of the people who are no longer being incarcerated. The level of incarceration is thus unjustly low. One might argue that incarceration is currently too high, so self-interested antiincarceration advocacy at least pushes the system in the right direction; but Dolovich's theory does not seem to allow for using self-interested advocacy instrumentally in that way, nor does her discussion of the parsimony principle take a position on whether incarceration is too high or too low.
453. See Baland & Platteau, supra note 49, at 158-59.
454. This is a made-up example; it doesn't apply to prison advocacy, where both the California corrections officers union and private prison firms give to both Republicans and Democrats. See SARABI & BENDER, supra note 30, at 13;
455. Pollak, supra note 102;
456. Talvi, supra note 130;
457. Center on Juvenile & Criminal Justice, supra note 82.
458. I am grateful to Joseph Bankman for this point.
459. See infra Section IV.D.
460. See supra text accompanying notes 56, 214.
461. See supra text accompanying notes 80-88.
462. See supra Part II.E.
463. See BUREAU OF JUSTICE STATISTICS, supra note 24, at 6 tbl.7.
464. For a case of selection bias in another context, see Alexander Volokh, Choosing Interpretive Methods: A Positive Theory of Judges and Everyone Else, 83 N.Y.U. L. REV. (forthcoming 2008).
465. See supra note 35.
466. This can be an example of a "political momentum" slippery slope. See Steven Callander, Bandwagons and Momentum in Sequential Voting, 74 REV. ECON. STUD. 653 (2007);
467. Eugene Volokh, The Mechanisms of the Slippery Slope, 116 HARV. L. REV. 1026, 1121-27 (2003).
468. See supra Part III.
469. At least the ones cited above, see supra note 31.
470. See Dan Morain, California's Profusion of Prisons, L.A. TIMES, Oct. 16, 1994, at Al;
471. Jenifer Warren, When He Speaks, They Listen, L.A. TIMES, Aug. 21, 2000, at Al.
472. Child Pornography and Abduction Prevention: Hearing on H.R. 1161 and H.R. 1104 Before the Subcomm. on Crime, Terrorism, and Homeland Security of the H. Comm. on the Judiciary, 108th Cong. (2003) (statement of Daniel P. Collins, Associate Deputy Att'y Gen.), 2003 WL 1079511.
473. See supra text accompanying notes 4-6.
474. See supra text accompanying notes 19-23.
475. See National Abortion Federation, About NAF, http://www.prochoice. org/ about_naf/index.html. For an accusation of self-interestedness,
476. see Paul M. Weyrich, Memos Might Reveal Profit Motive in Senate, INSIGHT ON THE NEWS, Mar. 29, 2004, at 52.
477. On affiliation bias, see PAUL SLOVIC, THE PERCEPTION OF RISK 311-13 (2000). The question of
478. see ERIC WILLIAMS, CAPITALISM & SLAVERY 169 (1961). For an argument that British capitalists were deluded into thinking that their abolitionism was moral, when in fact it served to legitimize "wage slavery,"
479. see John Ashworth, The Relationship Between Capitalism and Humanitarianism, 92 AM. HIST. REV. 813, 815 (1987);
480. David Brion Davis, Reflections on Abolitionism and Ideological Hegemony, 92 AM. HIST. REV. 797, 802 (1987). For an argument that the market discipline imposed by capitalism nurtured humanitarianism and abolitionism,
481. see Thomas L. Haskell, Convention and Hegemonic Interest in the Debate over Antislavery: A Reply to Davis and Ashworth, 92 AM. HIST. REV. 829, 852-53 (1987). And for an argument that British capitalists' self-interest and their interest in abolitionism were coincidental - that is, that the middle classes were really just motivated by humanitarianism -
482. see G.M. TREVELYAN, ENGLISH SOCIAL HISTORY: A SURVEY OF SIX CENTURIES, CHAUCER TO QUEEN VICTORIA 495-97 (1942);
483. Ashworth, supra, at 813;
484. Howard Temperley, Capitalism, Slavery and Ideology, 75 PAST & PRESENT 94, 98 (1977)
485. (citing REGINALD COUPLAND, THE BRITISH ANTI-SLAVERY MOVEMENT 111, 250-51 (1933)). Or take a somewhat different context: There is a class of strategic games (similar to that in the model presented in Part II supra) where, according to standard economic theory, the "best" strategy is to free ride off other players. Though several laboratory experiments suggest that people consistently act more cooperatively than predicted by economic theory.
486. See James Andreoni, Why Free Ride? Strategies and Learning in Public Goods Experiments, 37 J. PUB. ECON. 291 (1988);
487. Robert Sugden, On the Economics of Philanthropy, 92 ECON. J. 341 (1982). However, one set of researchers finds that economists are an exception to this pattern. Perhaps economists are the only group to act according to naked self-interest. Or, the researchers suggest, self-selection or false consciousness may play a role: "Economists may be selected for their work by virtue of their preoccupation with the 'rational' allocation of money and goods. Or they may start behaving according to the general tenets of the theories they study."
488. Gerald Marwell & Ruth E. Ames, Economists Free-Ride, Does Anyone Else?: Experiments on the Provision of Public Goods, 15 J. PUB. ECON. 295, 309 (1981).
489. See DAVID D. FRIEDMAN, LAW'S ORDER: WHAT ECONOMICS HAS TO DO WITH LAW AND WHY IT MATTERS 229-31 (2000);
490. Louis Kaplow & Steven Shavell, Economic Analysis of Law, in 3 HANDBOOK OF PUBLIC ECONOMICS 1661, 1748 (Alan J. Auerbach & Martin Feldstein eds., 2002);
491. A. Mitchell Polinsky & Steven Shavell, The Economic Theory of Public Enforcement of Law, 38 J. ECON. LITERATURE 45, 48 & n.12 (2000).
492. But see Dolovich, supra note 25, at 515-16 (suggesting that profit-making should not count in determining optimal criminal law);
493. George J. Stigler, The Optimum Enforcement of Laws, 78 J. POL. ECON. 526, 527 (1970) (arguing that illicit utility should not count).
494. See, e.g., Nixon v. Shrink Mo. Gov't Political Action Comm., 528 U.S. 377, 411 (2000) (Thomas, J., dissenting);
495. Buckley v. Valeo, 424 U.S. 1, 19-23 (1976) (noting the importance of political expenditures for free expression);
496. E. R.R. Presidents Conf. v. Noerr Motor Freight, 365 U.S. 127, 137 (1961);
497. LEGISLATIVE RESEARCH COUNCIL, supra note 31, at 57;
498. LOGAN, supra note 31, at 159.
499. I have defined "advocacy" broadly, so that it includes, at one extreme, bribery. See supra text accompanying notes 63-64. The arguments in the paragraph above, of course, may apply more naturally to the more licit, non-bribery, forms of advocacy. Even bribery has its defenders, though it is unclear how much relevance the arguments for bribery have for incarceration policy.
500. See, e.g., SAMUEL P. HUNTINGTON, POLITICAL ORDER IN CHANGING SOCIETIES 69 (1968);
501. Francis T. Lui, An Equilibrium Queuing Model of Bribery, 93 J. POL. ECON. 760, 761 (1985).
502. See, e.g., LOGAN, supra note 31, at 154;
503. Tabarrok, supra note 36, at 7 n.6.
504. There were no resource constraints in the models above-the effectiveness of advocacy was not assumed to depend on whether there was any other advocacy out there (the public or politicians did not have limited attention spans), and prison system actors were assumed to be able to make any positive-net-expected- value investment (capital markets were liquid).
505. Nor have I explored whether advocacy could be controlled in other ways, for instance, by direct regulation, see Rosky, supra note 6, at 955-56-though I have, I suppose, tacitly assumed that such regulation will not be effective, including regulation specifically designed to control advocacy by unions (à la Abood v. Detroit Bd. of Educ., 431 U.S. 209, 211 (1977)).
506. See, e.g., First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765 (1978) (holding that corporations have First Amendment rights);
507. Buckley v. Valeo, 424 U.S. 1 (1976) (holding that First Amendment rights include political advocacy);
508. LOGAN, supra note 31, at 159;
509. Sheryl Gay Stolberg, House Passes Limit on Cash for Groups in Campaigns, N.Y. TIMES, Apr. 6, 2006, at A21 (referring to campaign finance restrictions as "whack-a-mole").
510. But see PAUL GUPPY, WASH. POLICY CTR., PRIVATE PRISONS AND THE PUBLIC INTEREST: IMPROVING QUALITY AND REDUCING COST THROUGH COMPETITION (2003), available at http://www.washingtonpolicy.org/ConOutPrivatization/ PBGuppyPrisonsPublicInterest.html (arguing that campaign finance laws will prevent such corruption).
511. See OLSON, supra note 37, at 2.
512. See Dolovich, supra note 25, at 532.
513. Id. at 543.
514. Cf. WILLIAM SHAKESPEARE, ROMEO AND JULIET act 3, sc. 1, ll. 89, 97-98, 104,
515. in WILLIAM SHAKESPEARE: THE COMPLETE WORKS 855, 876 (Alfred Harbage ed., Viking 1969) ("A plague a both your houses!").
516. Economists know this as the theory of the second best. See JEAN-JACQUES LAFFONT, FUNDAMENTALS OF PUBLIC ECONOMICS 167 (John P. Bonin & Hélène Bonin trans., rev. ed. 1988);
517. R.G. Lipsey & Kelvin Lancaster, The General Theory of Second Best, 24 REV. ECON. STUD. 11, 11 (1956-1957).
518. See JOHN RAWLS, A THEORY OF JUSTICE 8 (1971);
519. see also Sharon Dolovich, Legitimate Punishment in Liberal Democracy, 1 BUFF. CRIM. L. REV. 307, 324 (2004) (discussing "partial compliance").
520. See JOHN RAWLS, THE LAW OF PEOPLES 89-90 (1999);
521. see also LIAM B. MURPHY, MORAL DEMANDS IN NONIDEAL THEORY (2000);
522. RAWLS, supra note 241, at 245-48 (suggesting that even "slavery and serfdom ... are tolerable . . . when they relieve even worse injustices");
523. Adrian Vermeule, The Judiciary Is a They, Not an It: Interpretive Theory and the Fallacy of Division, 14 J. CONTEMP. LEGAL ISSUES 549, 552-53, 581-84 (2005).
524. Dolovich, supra note 25, at 532.
525. Id. at 542-43.
526. Id. at 529.
527. Id. at 530.
528. Cf. ISAIAH BERLIN, THE CROOKED TIMBER OF HUMANITY: CHAPTERS IN THE HISTORY OF IDEAS at xi, 19, 48 (Henry Hardy ed., 1992)
529. [hereinafter BERLIN, CROOKED TIMBER];
530. Isaiah Berlin, Montesquieu, 41 PROC. BRIT. ACAD. 267, 284 (1955),
531. reprinted in ISAIAH BERLIN, AGAINST THE CURRENT: ESSAYS IN THE HISTORY OF IDEAS 130, 148 (Henry Hardy ed., 1980);
532. Henry Hardy, Editor's Preface to BERLIN, CROOKED TIMBER, supra, at v, vii & n.2 (Henry Hardy ed., 1992) (discussing R.G. Collingwood's use of "cross-grained" timber in his 1929 lecture);
533. IMMANUEL KANT, Idee zu einer allgemeinen Geschichte in weltbürgerlicher Absicht, in WAS IST AUFKLÄRUNG?: AUSGEWÄHLTE KLEINE SCHRIFTEN 3, 10 (Philosophische Bibliothek Bd. 512, 1999) (1784) ("aus so krummem Holze, als woraus der Mensch gemacht ist, kann nichts ganz Gerades gezimmert werden"),
534. translated in IMMANUEL KANT, Idea for a Universal History with a Cosmopolitan Purpose, in POLITICAL WRITINGS 41, 46 (H.S. Reiss ed., 2d ed. 1991) ("Nothing straight can be constructed from such warped wood as that which man is made of.").
535. See JAMES CARROLL, HOUSE OF WAR: THE PENTAGON AND THE DISASTROUS RISE OF AMERICAN POWER 499 (2006);
536. S.E. FINER, THE MAN ON HORSEBACK: THE ROLE OF THE MILITARY IN POLITICS 74, 107 (1962);
537. JAMES F. SCHNABEL, UNITED STATES ARMY IN THE KOREAN WAR: POLICY AND DIRECTION: THE FIRST YEAR 370-74 (Maurice Matloff ed., 1972);
538. Jim Hoagland, Musharraf's Obsolete Way, WASH. POST, Aug. 5, 2007, at B7 ("Pakistan continues to exist as a one-dimensional national security state, with its military fomenting crises in Kashmir and Afghanistan to justify the army's size and its control over the politicians.").
539. But see CARROLL, supra, at 501-02;
540. SAMUEL P. HUNTINGTON, THE SOLDIER AND THE STATE 69 (1957) (portraying the military as a conservative, anti-war force).
541. See, e.g., SEYMOUR MELMAN, PENTAGON CAPITALISM: THE POLITICAL ECONOMY OF WAR 8 (1970) (describing the Vietnam war as beneficial for Department of Defense officials);
542. see also AARON L. FRIEDBERG, IN THE SHADOW OF THE GARRISON STATE 294-95 (2000) (arguing that if arms were made by government instead of by private contractors, "[p]ublic producers might actually have been better situated than their private counterparts to delay or prevent deep reductions in military spending ... it is difficult to believe that a large, deeply entrenched public bureaucracy with nowhere to go but out of business would have been a less effective opponent of peace");
543. id. at 295
544. (citing F.M. SCHERER, THE WEAPONS ACQUISITION PROCESS: ECONOMIC INCENTIVES 388 (1964)).
545. Compare also FER. R. ACQ. 34 ("War is good for business."),
546. with FER. R. ACQ. 35 ("Peace is good for business."),
547. in QUARK, THE FERENGI RULES OF ACQUISITION 19, 21 (Ira Steven Behr ed., 1995).
548. In particular, I suspect that privatization that displaces public provision will likely displace public lobbying, while privatization that supplements public provision will likely supplement public lobbying. Private attorneys general seem to fit more easily into the latter case, while private military contractors or prison firms seem to fit more easily into the former case (despite the possibility that reduced costs also increase incarceration). See Bruce L. Benson, Do We Want the Production of Prison Services to Be More "Efficient"?, in CHANGING THE GUARD, supra note 36, at 163, 197-98;
549. White, supra note 116, at 137, 145.
550. WILLIAM HOWARD TAFT, THE ANTI-TRUST ACT AND THE SUPREME COURT 4 (photo, reprint 1993) (1914);
551. see also Arthur P. Dudden, Men Against Monopoly: The Prelude to Trust-Busting, 18 J. HIST. IDEAS 587, 590 (1957);
552. Lester M. Salamon & John J. Siegfried, Economic Power and Political Influence: The Impact of Industry Structure on Public Policy, 71 AM. POL. SCI. REV. 1026, 1039 (1977).
553. But cf. DeNeen L. Brown, Rejected as a Planet, Pluto Has a Space in People's Hearts, WASH. POST, Sept. 2, 2006, at C1.