Interest groups and the problem with incrementalism

University of Pennsylvania Law Review

Volumn 158, Issue 3, 2010, Pages 815-858

  Levmore, Saul ^a  

^a UNIVERSITY OF CHICAGO LAW SCHOOL   (United States)

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EID: 77950201362     PISSN: 00419907     EISSN: None     Source Type: Journal    
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References (99)

1. See, e.g, CASS R. SUNSTEIN, ONE CASE AT A TIME: JUDICIAL MINIMALISM ON THE SU-PREME COURT 4 (1999) (arguing that minimalism promotes deliberative democracy);
2. Yair Listokin, Learning Through Policy Variation, 118 YALE L.J. 480, 519-22 (2008) (contrasting the "optimal search" approach, which "recommends considerable innovation" in the hunt for a "successful" policy, with the Burkean approach, which "favors incremental change that is regularly evaluated empirically");
3. Cass R. Sunstein, Burkean Minimalism, 105 MICH. L. REV. 353, 362-66 (2006) (describing judicial minimalism as constraining judges to shallow and narrow changes in law). Most of the cases discussed in this Article deal with legislation and regulation, although some of the changes, such as disability accommodations, came about through judicial action. The argument advanced here also applies to judicial decisions, for they, too, are influenced by interest groups-in litigation as well as in appointment and confirmation. The type of influence, however, is different Stare decisis also changes the argument as applied to courts: legislatures are not bound by any such principle. Finally, as is well known, various doctrines and conventions limit interest groups' ability to control the order in which incremental (or drastic) change is proposed to courts.
4. See generally MAXWELL L. STEARNS, CONSTITUTIONAL PROCESS: A SOCIAL CHOICE ANALYSIS OF SUPREME COURT DECISION MAKING (2000) (discussing the impact of doctrines such as standing and stare decisis on court decisions);
5. Maxwell L. Stearns, Standing Back from the Forest: Justiciability and Social Choice, 83 CAL. L. REV. 1309 (1995) (arguing that the standing doctrine prevents opportunistic litigants from controlling the critically important path of legal decisions). For the most part, the incrementalism problem in judicial decisionmaking is left for another day.
6. For example, two recent discussions of incrementalism do not discuss the effects of interest groups. See Susan Block-Lieb & Terence C. Halliday, Incrementalisms in Global Lawmaking 32 BROOK J. INT'L L. 851, 855 (2007);
7. James M. Donovan, Baby Steps or One Fell Swoop?: The Incremental Extension of Rights Is Not a Defensible Strategy, 38 CAL. W. L. REV. 1, 3-4 (2001).
8. As we will see, the last example represents a serious incrementalism problem. Fuel-economy standards, however, do not because they resemble minimum-age legislation and other regulation that does not divide and conquer different groups. See infra Section III.C.
9. One commentator describes this claim: Many years ago, James Buchanan suggested a solution: The U.S. could select-perhaps at random-some other group of people about the same size as the benefitted group and could put the tax on them. Thus, two lobbying groups would be opposing each other and the outcome presumably would be improved. Gordon Tullock, Rent Seeking and Tax Reform, CONTEMP. POLY ISSUES, Oct. 1988, at 37 46.
10. On assessing the power of interest groups and the magnitude of rent-seeking behavior, see Paul J. Stancil, Assessing Interest Groups: A Playing Field Approach, 29 CARDOZO L. REV. 1273 (2008).
11. The actual progression of the law has been complex. Congress first passed the Architectural Barriers Act of 1968, which requires accommodations for people with disabilities in all new federally funded construction. Pub. L. No.90-480, 82 Stat 718 (codified as amended at 42 U.S.C. §§ 4151-4156 (2006)). A variety of other regulations culminated in the Americans with Disabilities Act of 1990, which requires "reasonable accommodation" of the disabled in all places of employment with fifteen or more employees and in all places of public accommodation. Pub. L. No. 101-336, 104 Stat 327 (codified as amended at 42 U.S.C. §§ 12101-12201, 12203-12213 (2006) (amended 2008); 47 U.S.C. §§ 225, 611 (2006)). The latter category is a broad one that includes most places in which commercial activity is undertaken. See 42 U.S.C. § 12181(7) (2006) (defining "public accommodation" to include, among other tilings, hotels, theaters, bakeries, and laundromats). The courts largely determine what accommodation is reasonable. Architectural requirements for new construction are remarkably detailed. See U.S. ARCHITECTURAL & TRANSP. BARRIERS COMPLIANCE BD., AMERICANS WITH DISABILITIES ACT (ADA) ACCESSIBILITY GUIDELINES FOR BUILDINGS AND FACILITIES (2002), available at http://www.access-board.gov/adaag/html/adaag.htm (detailing complex requirements for ramps, stairs, elevators, drinking fountains, and many other features of new structures). For a detailed discussion of the evolution of these regulations,
12. see Jonathan C. Drimmer, Cripples, Overcomers, and Civil Rights: Tracing the Evolution of Federal Legislation and Social Policy for People with Disabilities, 40 UCLAL. REV. 1341, 1376-1405 (1993).
13. The Fair Housing Act (FHA) regulates residential buildings. 42 U.S.C. §§ 3601-3619 (2006). In 1988, the FHA was amended to include people with disabilities. Fair Housing Amendments Act of 1988, Pub. L. No.100-430, 102 Stat 1619 (codified as amended at 42 U.S.C. §§ 3601-3619, 3631 (2006)). Under the FHA, landlords must allow disabled tenants to make adjustments to unit and common spaces. 42 U.S.C. § 3604 (0(3)(A). In addition, all new residential buildings with four or more units must be made handicapped-accessible. Id § 3604 (f) (3) (C). The example in the text may also be understood as concerning local law, which often precedes or adds to federal law. California, for example, enacted broad disability legislation in 1980, and this regime has been updated frequently and incrementally. See California Fair Employment and Housing Act, ch. 992, 1988 Cal. Stat 3138 (codified as amended at CAL. GOV'T CODE §§ 12900-12996 (West 2009)). For an overview of the California enactment
14. see generally Michael L. Murphy, John H. Fanning Labor Law Writing Competition Winner, Assembly Bill 2222: California Pushes and Breaks the Disability Law Envelope, 51 CATH. U. L. REV. 495 (2002). The example in the text is intentionally ambiguous as to whether the requirement will attach to all older buildings or only to those that have been renovated or otherwise modified. The ambiguity reflects the pattern of existing law, in which the rules for new construction apply to the modification of older buildings, whereas the owners of untouched older buildings must simply remove architectural barriers that can readily be eliminated. It also suggests, however, that courts or agencies can choose to be more or less aggressive in declaring which buildings must be modified.
15. The question why new construction has been regulated more readily than old buildings or retailers remains. A few explanations can be offered. It is normally less expensive to build ramps when starting anew than it is to retrofit so a cost-benefit analysis might have caused lawmakers to favor regulating new construction either as a start or simply to earn the highest social rate of return for a given investment. New construction costs also fall largely on dispersed and unidentifiable future owners of properties, who may simply be less able to stand up to the advocates for improved access. In any event the owners of newly constructed and regulated buildings have no great reason to favor (or disfavor) the regulation of preexisting structures unless they think that some of these will close down and rents will rise elsewhere.
16. The tale in the text depicts a strategic advocacy group, but the incrementalism problem does not depend on conscious, strategic behavior. Advocates may innocently push for an incremental change because they perceive that the smaller change is all that can be obtained at present They may be unaware of the alignment of interest groups opposed to the changes they support. It is nevertheless a problem if this happens repeatedly, as if there were strategic division of the defense, and in a manner that takes us away from the social optimum.
17. Competition is probably the key to recognition. In 2009, for example, United Parcel Service (UPS) supported legislation that would put employees of FedEx, its direct competitor, under the jurisdiction of the National Labor Relations Act; it had previously operated under the Railway Labor Act See Alex Roth, FedEx and UPS Clash over Legislation, WALL ST. J., July 20, 2009, at B1 (noting that regulation under the National Labor Relations Act would make it easier for FedEx employees to unionize);
18. Press Release, FedEx, Railway Labor Act available at http://ir.fedex.com/ releasedetail.cfm? ReleaseID=388559 ("FedEx Express has been correctly covered by the [Railway Labor Act] since our first day of operation in 1973."). An important difference between the regulatory structures is that workers can unionize on a location-by-location basis under the former but not the latter. We can think of the reaches of the Railway Labor Act and of the National Labor Relations Act as having been incrementally altered.
19. Many well-known voting paradoxes arise out of preferences that cannot be aggregated in a way guaranteed to be consistent and to meet other seemingly simple requirements of democratic decisionmaking. See William H. Riker & Steven J. Brams, The Paradox of Vote Trading 67 AM. POL. SCI. REV. 1235, 1241 (1973) (analyzing the logrolling paradox and concluding that "if each [legislator] behaves rationally by making the trades possible for him, all the members suffer. They are, in fact worse off than if they had voted sincerely or naively."). The problem may be compounded in the presence of overachieving interest groups.
20. See generally Saul Levmore, Voting Paradoxes and Interest Groups, 28 J. LEGAL STUD. 259 (1999) (discussing the basic voting paradox as well as logrolling and other voting paradoxes and introducing the idea that interest groups exploit paradoxes). These paradoxes are also present in the judicial context.
21. See Frank H. Easterbrook, Ways of Criticizing the Court, 95 HARV. L. REV. 802, 823-831 (1982) (examining the decisionmaking processes of the Supreme Court from a publicchoice perspective and concluding that inconsistency is inevitable in such an institution).
22. In describing the mechanisms of the slippery slope, Eugene Volokh describes how mandatory gun registration could lead to gun confiscation even though confiscation could not have garnered sufficient support at the initial stage. See Eugene Volokh, The Mechanisms of the Slippery Slope, 116 HARV. L. REV. 1026, 1033 (2003) ("Registration may change people's attitudes about the propriety of confiscation, by making them view gun possession not as a right but as a privilege that the government grants and therefore may deny." (emphasis omitted)).
23. Market solutions normally involve change over time, so we do not expect all property owners who install ramps to do so at the same time. The owners may have different costs, discount rates, and so forth. A legal mandate generally requires compliance in a specified time period; sometimes the effective date is in the future, and even then different owners can comply at different times. Effective dates and grandfather clauses are other sources of incrementalism and subjects of interest-group activity.
24. See Saul Levmore, Precommitment Politics, 82 VA. L. REV. 567, 618-22 (1996) (noting that absent internal congressional regulations to facilitate precommitments, the judiciary is unlikely to enforce serious restrictions on legislative second thoughts because of their undemocratic nature).
25. There is the question how a monopolist would impose or price access ramps in a market where subsequent "customers" valued the ramps at decreasing amounts. I do not pursue this analogy here because my emphasis is on interest groups.
26. This is one application of the analysis in an article by Eric Posner, Kathryn Spier, and Adrian Vermeule. See Eric A. Posner, Kathryn E. Spier & Adrian Vermeule, Divide and Conquer 38-39 (Univ. of Chi., Law & Econ., Olin Working Paper No. 467, 2009), available at http://ssrn.com/abstract=1414319 (asserting that the divide-andconquer strategy is ubiquitous, that it is normatively hard to assess unless we know the social optimum, and that a fairly common "solution" is to impose a kind of equaltreatment rule, the success of which will depend on context). Note that the equaltreatment rule suggested by Posner, Spier, and Vermeule is unworkable in our regulatory setting because of the difficulty in identifying when situations are alike. Moreover, there is presumably some optimum that contradicts the value of equal treatment. It cannot possibly be that ramps should be everywhere.
27. The focus on advocates rather than defenders might also be justified with the observation that the advocates set the agenda; they are on the attack and it is easier to think of them as dividing and conquering the defenders than the other way around. It should be noted that the incrementalism exercise undertaken here introduces a kind of status-quo bias because I do not pause to ask how we came to the prevailing smoking, accommodation, or other policy that advocates now try to undo or outdo. But it is difficult to start in any other place, and the takings literature, which is something of a foil below, does much the same. There, too, we can ask whether existing property rights are fair or even efficient before we endeavor to restrain inefficient takings. See Saul Levmore, Property's Uneasy Path and Expanding Future, 70 U. CHI. L. REV. 181, 183-89 (2003) (hypothesizing that property rights, both real and intellectual, may plausibly evolve as the result of wealth-maximizing allocations or interest-group pressures; regulatory law normally assumes the former and might add to the inefficiency when the latter is instead true);
28. Saul Levmore, Two Stories About the Evolution of Property Rights, 31J. LEGAL STUD. S421, S423-33 (2002) (arguing that every instance of privatization may have transaction-cost and interest-group explanations; without a great deal of evidence to determine the actual origin, further government interventions that disturb the status quo are hard to evaluate).
29. A note of caution in the other direction is also appropriate. Incrementalism may produce the wrong results even when there is no collective action problem among interest groups. Defenders may underinvest if they think that each regulatory step is minor and not worth opposing with sufficient force. But this is a problem with all bargains, as discussed in the text There is also the danger that disparate interest groups care about proposed regulations to different degrees, so that it will be difficult to allocate costs, and the danger of free riding will therefore be greater. I do not emphasize this sort of collective action problem here because there is no reason to think this problem greater for advocates or defenders and no reason to think it is more of a problem with respect to incrementalist proposals than to more drastic ones.
30. Once the ramps are built the regulated party has no interest in reversing the ban because there is no marginal cost to further compliance. In contrast a smoking ban presumably imposes continuing costs on the entrepreneur who objects to it See, e.g., Nicholas A. Danella, Note, Smoked Out: Bars, Restaurants, and Restrictive Antismoking Laws as Regulatory Takings, 81 NOTRE DAME L. REV. 1095, 1112-13 (2006) (reporting sales declines of thirty percent or more in bars subject to smoking bans).
31. But see Lainie Rutkow et al., Banning Second-Hand Smoke in Indoor Public Places Under the Americans with Disabilities Act: A Legal and Public Health Imperative, 40 CONN. L. REV. 409, 442 (2007) ("[P]eer-reviewed evaluations of the economic impact of smoking bans have definitively refuted this claim. [I] f anything, many restaurants and bars experience neutral or positive economic effects after smoking bans are implemented." (footnote omitted)). Many other differences exist that do not advance the present argument. Thus, there is a case to be made against smoking bans on the ground that consumers can simply avoid establishments that permit smoking such that some sorting will provide places that do and do not permit smoking. It is possible that it is more difficult for owners of buildings to capture a portion of the benefits created by access ramps. And it is certainly puzzling to observe overwhelming political success and yet so little market success in the preceding period. All this can be disputed and is, in any event not necessary to the point advanced in the text.
32. See U.S. CONST, amend. V ("[N] or shall private property be taken for public use, without just compensation.").
33. See infra Part III.
34. See RICHARD A. EPSTEIN, TAKINGS: PRIVATE PROPERTY AND THE POWER OF EMINENT DOMAIN 57 (1985) (arguing that compensation should be paid if "the government remove[s] any of the incidents of ownership [or] diminish [es] the rights of the owner in any fashion... no matter how small the alteration and no matter how general its application").
35. See, e.g, DAVID A DANA & THOMAS W. MERRILL, PROPERTY: TAKINGS 169 (2002) ("The basic legal standard for determining what constitutes just compensation is well established: The owner is entitled to the fair market value of the property taken.").
36. See, e.g., Lawrence Blume & Daniel L. Rubinfeld, Compensation for Takings: An Economic Analysis, 72 CAL. L. REV. 569, 610-15 (1984) (arguing that the judicial approach to regulatory takings is unsatisfactory, and proposing an approach based purely on maximizing economic efficiency in which the government can be said to supply otherwise unavailable insurance through ex post compensation);
37. Thomas W. Merrill, Incomplete Compensation for Takings, 11 N.Y.U. ENVTL. L.J. 110, 111 (2002) ("When one examines American compensation law, however, one finds that... there is little guidance about how to measure just compensation in regulatory takings cases.")
38. ; Jeremy Paul, The Hidden Structure of Takings Law, 64 S. CAL. L. REV. 1393, 1438 & n.110, 1441 (1991) (stressing the need to identify a "neutral baseline" in takings cases so that courts may evaluate regulation "against a reference point that is not provided by the regulators themselves. [nor] upon a method for evaluating regulatory goals that is more than merely the courts' own judgment concerning the wisdom of the regulation").
39. Incrementalism could still be a problem because voters, now burdened not only by inefficient regulations but also by the financial responsibility of compensation, might pay more attention to drastic changes than to small ones. Advocates might thus slide things past voters by proceeding incrementally. This, however, would be a different kind of incrementalism problem.
40. See DANA & MERRILL, supra note 21, at 35 ("[C]osts [of uncompensated takings]. include. the foregone investment caused by fear of such losses on the part of property owners more generally.").
41. See id. at 41-42 (discussing efficiency as a basic justification for compensation).
42. See id. at 39 ("Takings result from a deliberate decision by political majorities to take the property of a minority.").
43. See id. at 38 ("Compensation. performs roughly the same function as mandatory insurance.").
44. For a catalogue of path-dependent accounts, see Volokh, supra note 10, at 1033-34, 1051-52, 1052 n.71. Volokh tells several stories in which small, incremental steps may lead to larger regulations that are initially undesired. For example, the effects of gun registration might appear to be too small to merit a defense, but small steps may nevertheless aggregate to regulation that would be highly objectionable.
45. Id. at 1033. Registration might "create political momentum" for gun control.
46. Id. (emphasis omitted). Registration might reconfigure the opposition to gun control if fewer people own guns as a result. Id. For example, registration may lower the cost of confiscation, which could be a principal point of opposition to confiscation
47. . Id. at 1033-34. Implementing confiscation might become constitutional where it previously was not because the registration system can provide probable cause to search the houses of all registered gun owners.
48. Id. at 1034.
49. Id. at 1033-1034
50. See, e.g., Jon S. Vernick et al., Public Opinion Polling on Gun Policy, HEALTH AFF., Winter 1993, at 203 (reporting that sixty-four percent of poll respondents opposed a total gun ban);
51. Marjorie Connelly, Public Supports Stricter Gun Control Laws, N.Y. TIMES, Aug. 26, 1999, http://partners.nytimes.com/library/national/082699poll-watch. html (last visited Jan. 15, 2010) ("The poll found only about a third of the public endorsed a ban on the sale of all handguns, with 61 percent opposed.").
52. See Alan Blum & Howard Wolinsky, AMA Rewrites Tobacco History, 346 LANCET 261, 261 (1995) ('Today's AMA should be commended for attempting to tackle the tobacco pandemic. But it should be remembered that this organisation is a latecomer to the war.").
53. Both groups might care about the health of employees in bars and restaurants, but such employees might self-select It is interesting that neither advocates nor opponents of smoking bans produce evidence of the sentiments of the employees. See generally H. Tang et al., Changes of Knowledge, Attitudes, Beliefs, and Preference of Bar Owner and Staff in Response to a Smoke-Free Bar Law, 13 TOBACCO CONTROL 87 (2004) (concluding that the popularity of California's smoke-free bar law increased over time, "even among bar owners and employees").
54. See Listokin, supra note 1, at 483, 533-39 (describing the value of high-variance experiments, especially when they are reversible). But reversibility for Listokin is not limited to compliance costs and is not at all focused on its role in creating or blocking political coalitions.
55. Id. at 533-534
56. If this be not so, then incrementalism is but a small problem in a larger, more distressing picture of government regulation and takings. When compensation is known to be ungenerous, affected parties can be expected to litigate and lobby to avoid having property or business interests regulated or condemned; if voluntary purchases by the government-in the shadow of expected regulation or eminent domain proceedings-are also ungenerous, then private property owners will expend resources to forestall government projects. On the other hand, where compensation in excess of the private owner's valuation is expected, there will be a push to have one's property taken (or one's business regulated) if the regulation is severe enough that it amounts to a compensable taking. At the same time, if payments required of the government affect its inclination or ability to regulate or to undertake projects (as will surely be the case if the beneficiary of the government's action is made to pay in one form or another), then we can expect a reduction in interventions. Correspondingly, if the government can capture gains from beneficiaries while it undercompensates losers, we can expect more intervention, unless tile losers who could not extract more compensation are somehow relatively adept at blocking the government's interventions. All this complexity can be avoided with the assumption of accurate compensation.
57. See WILLIAM N. ESKRIDGE, JR., ET AL., CASES AND MATERIALS ON LEGISLATION 57 tbl.1.1 (4th ed. 2007) (charting the costs and benefits of various legislative processes);
58. MAXWELL L. STEARNS & TODD J. ZYWICKI, PUBLIC CHOICE CONCEPTS AND APPLICATIONS IN LAW 251-54 (2009) (discussing the "demand side" of legislative goods).
59. See Tullock, supra note 4, at 46 (proposing the notion that if interest groups were pitted against one another, the allocation of resources would be more efficient).
60. See Steven A. Mirmina, Aviation Safety and Security-Legal Developments, 63 J. AIR L. & COM. 547, 558-559 (1998) (charting the history of nonsmoking sections and smoking bans on airlines).
61. See id.; see also 49 U.S.C. § 41706(a) (2006) (prohibiting smoking on all domestic flights).
62. California, for example, pursued aggressive regulation of smoking in public places. It passed the Smoke-Free Act in 1994, prohibiting smoking in all places of employment. Ch. 310, 1994 Cal. Stat 2055 (codified as amended at CAL. LAB. CODE § 6404.5 (West 2003)). Some of California's cities have passed yet more stringent local laws. The city of Calabasas, for example, prohibits smoking in all indoor and outdoor areas of the city, except for a handful of designated smoking areas. CALABASAS, CAL., CODE § 8.12.040(A)-(B) (2009), available at http://www.municode.com/Resources/gateway.asp?pid=16235&sid=5.
63. See, e.g, Act of July 5, 1989, ch. 244, sec. 5, § 1399-o, 1989 N.Y. Laws 2328, 2329-34 (codified as amended at N.Y. PUB. HEALTH LAW § 1399-o (McKinney 2002 & Supp. 2009)) (banning smoking in all enclosed workplaces). The present law, however, exempts (1) private homes and automobiles, (2) hotel and motel rooms, (3) retail tobacco businesses, (4) private clubs, (5) cigar bars, (6) outdoor areas of restaurants and bars, and (7) enclosed rooms in restaurants, bars, convention halls, and so forth, when hosting private functions organized for the promotion and sampling of tobacco products. N.Y. PUB. HEALTH LAW § 1399-q (McKinney 2002 & Supp. 2009). This law amended the prior law, which in 2003 had banned smoking in most indoor areas open to the public. Cf. Act of Mar. 26, 2003, ch. 13, sec. 4, § 1399-q, 2003 N.Y. Laws 109, 113-114 (codified as amended at N.Y. PUB. HEALTH LAW § 1399-q (McKinney 2002 & Supp. 2009)).
64. For example, in Florida, a person over 21 years of age may operate or ride upon a motorcycle without wearing protective headgear securely fastened upon his or her head if such person is covered by an insurance policy providing for at least $10,000 in medical benefits for injuries incurred as a result of a crash while operating or riding on a motorcycle. FLA. STAT. § 316.211 (3) (b) (2009). This section amended the prior Florida law, which had required all motorcyclists to wear protective headgear. Act of June 16, 1971, ch. 71-135, §316.287, 1971 Fla. Laws 431, 543 (codified as amended at FLA. STAT. § 316.211 (3)(b)). At the federal level, states were initially required to lower their highway speed limits to fifty-five miles per hour in order to receive certain federal funds. Emergency Highway Energy Conservation Act, Pub. L. No.93-239, §2(b), 87 Stat 1046, 1046-47 (1974), repealed by National Highway System Designation Act of 1995, Pub. L. No. 104-59, § 205 (d)(1), 109 Stat 568,577. The law was modified by Congress in the late 1980s to increase the limit to sixty-five miles per hour on certain roads, see Surface Transportation and Uniform Relocation Assistance Act of 1987, Pub. L. No. 100-17, § 174, 101 Stat 132, 218, but then repealed in 1995, returning the issue completely to the states, see National Highway System Designation Act § 205(d)(1). Since that time many states have raised their speed limits, though uniformity is still lacking.
65. See, e.g., Robert E. King & Cass R. Sunstein, Essay, Doing Without Speed Limits, 79 B.U. L. REV. 155, 158-62 (1999) (examining the federal maximum speed limit's effect on Montana's legislative effort to replace speed limits with a law requiring drivers to operate their vehicles at a " reasonable" speed). For example, the current speed limit on interstate highways in Idaho is seventy-five miles per hour. IDAHO CODE ANN. § 49-654 (2) (c) (2008). In Illinois, the limit is sixty-five miles per hour. 625 ILL. COMP. STAT. 5/11-601 (2008).
66. See generally John P. Steines, Income Tax Allowances for Cost Recovery, 40 TAX L. REV. 483 (1985) (reviewing the history of accelerating and tightening depreciation deductions as well as the related investment tax credit).
67. Note that this reversal-by-compensation strategy is applied here even though a smoking ban, unlike a ramp requirement does not represent an irreversible investment See supra note 17 (discussing the irreversibility of a ramp requirement).
68. If this argument is fashioned as a takings claim, then we need some baseline understanding of property rights and smoking rights. As a tort claim, it is unconvincing because the primary wrongdoers are the smokers (or tobacco companies) and not the owners of facilities in which secondhand smoke is experienced. Still, there remains the idea developed in the retroactivity, or legal-transitions, literature that retroactive liability will discourage parties with superior information about desirable legal change from lobbying or otherwise working against improvements in law. See Louis Kaplow, An Economic Analysis of Legal Transitions, 99 HARV. L. REV. 509, 551-52 (1986) (showing that transition rules, including retroactivity, can enforce the legal system's goals);
69. Saul Levmore, Changes, Anticipations, and Reparations, 99 COLUM. L. REV. 1657, 1658-59 (1999) (elaborating the argument that parties with information can be encouraged to anticipate legal change through retroactive liability and other means). A major problem with this argument is that it raises the stakes associated with change and might actually lead interest groups to block progress rather than to accelerate it Note that the description in the text passes over the puzzle of why choice is so rarely offered in the absence of legal intervention. Why, in other words, are nonsmokers so powerful politically yet so weak in the marketplace that they could rarely be satisfied by entrepreneurs who sorted them by offering nonsmoking environments?
70. The Supreme Court has stated that [t]he question of what constitutes a "taking" for purposes of the Fifth Amendment has proved to be a problem of considerable difficulty. While this Court has recognized that the "Fifth Amendment's guarantee. [is] designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole," this Court, quite simply, has been unable to develop any "set formula" for determining when "justice and fairness" require that economic injuries caused by public action be compensated by the government rather than remain disproportionately concentrated on a few persons. Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 123-24 (1978) (alteration in original) (citation omitted) (quoting Armstrong v. United States, 364 U.S. 40, 49 (1960)). As for the rules themselves, there is, for example, the permanent-physicalpresence test articulated in Loretto v. Teleprompter Manhattan CATV Corp. 458 U.S. 419 (1982). Under this rule, a taking will be found if the governmental action imposes "a permanent physical occupation of property," irrespective of whether the regulation secures a public policy benefit or "has only minimal economic impact on the owner." Id. at 434-35. Similarly, there is Lucas v. South Carotina Coastal Council, which holds that a taking may be found when the state deprives a property owner of "all economically beneficial uses of the land." 505 U.S. 1003, 1019 (1992) (emphasis omitted).
71. See 49 C.F.R. §571.208, subsecs. S4.1.4, S4.1.5.3 (2008) (mandating that passiverestraint systems be installed in all cars manufactured after September 1, 1989, and mandating airbag installation in all cars manufactured after September 1, 1997).
72. See id. §571.208, subsec. S4.1.5.3 (permitting the passive-restraint requirement to be met with airbags alone).
73. The law might have given manufacturers a choice, even though airbags were superior and bifurcation might have sacrificed some economies of scale.
74. Cf. 49 C.F.R. §1544.223(b) (2009) (requiring commercial carriers to provide seats for federal air marshals).
75. Cf. id §1544.223(c) (requiring air marshals' seats to be provided free of charge).
76. See generally Julie A. Roin, Reconceptualizing Unfunded Mandates and Other Regulations, 93 Nw. U. L. REV. 351 (1999) (examining the positive attributes of unfunded mandates). An important feature of Professor Roin's discussion is the political power of states and localities.
77. See id. at 378 ("State and local governments, or the interests that they tax or service, may balance or offset those interest groups that stand to gain from intergovernmental mandates."). In particular, she focuses on the ability of state and local governments to form coalitions as repeat players and to organize in the halls of Congress.
78. See id. at 379 ("Indeed, these subordinate governments might lobby for funded-or, of course, for overfunded-mandates when there is . some political gain to a claim that the federal government forced certain policies on the states and localities."). This power might explain why the incrementalism problem does not often arise by dividing and conquering jurisdictions.
79. Wisconsin, for example, lowered its drinking age to eighteen in 1971. Act of Mar. 22, 1972, §5, 1971 Wis. Sess. Laws 509, 510 (current version at WIS. STAT. §125.02 (8m) (2009)). Prior to that time, the drinking age had been twenty-one for all wine and spirits. Id. It was raised to nineteen in 1984,
80. see Act of Nov. 3, 1983, §5, 1983 Wis. Sess. Laws 786, 787 (current version at WIS. STAT. §125.02 (8m)) (raising the drinking age to nineteen effective July 1, 1984), and to twenty-one in 1986,
81. see Act of June 7, 1986, §§4, 55, 1985 Wis. Sess. Laws 1484, 1484, 1493 (current version at WIS. STAT. §125.02 (8m)) (adjusting the minimum drinking age to twenty-one and grandfathering in nineteen- and twenty-year-olds). See WIS. STAT. §125.02(8m) (defining the current legal drinking age as twenty-one).
82. I leave aside a hypothetical assault on sixty-five-year-olds, who might be well represented by the AARP.
83. Even in those states with the most frequent changes, there has not been a progression that looks like a divide-and-conquer strategy. Georgia, for example, legislated twenty-one as the minimum age for purchasing alcohol in 1938 (after the end of Prohibition in 1933, see U.S. CONST, amend. XXI).
84. See Revenue Tax Act to Legalize and Control Alcoholic Beverages and Liquors, No.297, §15, 1937-1938 Ga. Laws 103, 118-19 (1938) (current version at GA. CODE ANN. §3-3-23 (2003 & Supp. 2009)) (prohibiting the sale of alcoholic beverages to minors);
85. cf. GA. CODE ANN. §74-104 (1937) (setting twenty-one as the age of majority). In 1972, Georgia lowered the age of majority to eighteen (this was a period in which drinking ages and voting ages dropped to conform to the age for military conscription).
86. See Act of Mar. 10, 1972, No. 862, sec. 1, §74-104, 1972 Ga. Laws 193, 194-95 (current version at GA. CODE ANN. §3-3-23). In 1980, Georgia again raised the age of majority, and thus the drinking age, to nineteen.
87. See Act of Apr. 13, 1981, No. 732, sec. 22, §5A-510, 1981 Ga. Laws 1269, 1281-83 (current version at GA. CODE ANN. §3-3-23). Finally, in 1985, Georgia raised the age to twenty-one (to take effect in 1986) in anticipation of a federal regulation.
88. See Act of Apr. 3, 1985, No. 562, sec. 3, §3-3-23, 1985 Ga. Laws 753, 755-57 (current version at GA. CODE ANN. §3-3-23). The minimum age was set at twenty for the 1985 transition year.
89. See id Effective dates were always set such that no cohort ever lost the ability to purchase alcoholic beverages. Therefore, no two cohorts were divided by the proposed effective dates. The pattern is best described as legislating an increase in the drinking age without disappointing the expectations of any cohort already old enough to vote.
90. In the case of gun control, one would not expect the losers in an early step to turn and support more regulation in a subsequent step. But there is the potential for a divide-and-conquer strategy if hunters care mostly about rifles and only support the absolutist position because they need allies or believe that the slippery slope will consume their passion. In any event it is not an incrementalism problem of the worst kind because hunters and gun collectors, for example, are not competitors. In the case of abortion rights, the slippery-slope claim is familiar but an incrementalism problem seems unlikely. Both sides in the debate are well organized. More importantly, voters are well-informed and involved, so legislation and judicial decisions seem to reflect a political and legal equilibrium rather than an incrementalist strategy. It is hard to see an interest on either side turning on its competitor.
91. Compare, e.g., Civil Rights Act of 1964, Pub. L. No.88-352, §701(b), 78 Stat 241, 253 (codified as amended at 42 U.S.C. §2000e(b) (2006)) (defining covered employers covered by Title VII to include those having twenty-five or more employees), with Equal Employment Opportunity Act of 1972, Pub. L. No. 92-261, sec. 2(2), §701(b), 86 Stat 103, 103 (codified as amended at 42 U.S.C. §2000e(b)) (extending the scope of Tide VII to employers with fifteen or more employees).
92. Compare, e.g.. Civil Rights Act §703, 78 Stat at 255-57 (codified as amended at 42 U.S.C. §2000e-2) (prohibiting employment discrimination on the basis of "race, color, religion, sex, or national origin"), with Pregnancy Discrimination Act of 1978, Pub. L. No.95-555, sec. 1, §701 (k), 92 Stat 2076, 2076 (codified as amended at 42 U.S.C. §2000e (b)) (expanding discrimination on the basis of sex to include discrimination based on pregnancy).
93. Rent seeking can be understood by beginning with the canonical case in which the government has a monopoly to bestow, perhaps in the form of a license. If the monopoly position is worth x dollars to the monopolist, a supplicant (or interest group) would presumably pay as much as x-1 dollars to acquire the position. One famous advance in public-choice theory was the realization that economists had underestimated the "problem with monopoly" by focusing only on the deadweight loss caused by the monopolist who sells less of a good, at a price higher than marginal cost than would sellers in a competitive market.
94. See Gordon Tullock, The Welfare Costs of Tariffs, Monopolies, and Theft, 5 W. ECON.J. 224, 231-32 (1967) (explaining that welfare loss from monopoly also comes from the resources producers spend successfully or unsuccessfully trying to obtain a monopoly). Consumers who would be willing to pay more than marginal cost might be denied the good because of the monopoly-pricing strategy, even though it would be efficient to transfer the good to those consumers. The public-choice insight is that the social cost of a monopoly is much greater than the aggregated deadweight loss because it includes the cost of wasteful rent-seeking activity. Id;
95. see also Richard A. Posner, The Social Costs of Monopoly and Regulation, 83 J. POL. ECON. 807, 809-15 (1975) (modeling the social costs of monopoly "as the sum of deadweight loss and the additional loss resulting from the competition to become a monopolist"). The resulting cost could be as great as or even greater than the expected profit from monopoly status. It could exceed the profit, for example, if competition caused one who had invested, say, 0.5x dollars in quest of the monopoly (worth x dollars) to regard that investment as a sunk cost such that it was worth spending another x-1 dollars at the margin to acquire the monopoly. In principle, there is no upper limit on
96. Government "givings" also present incrementalism problems, especially if the givings, or benefits, are meant to produce reactions. I limit the discussion here to burdens and will confront givings issues in future work, where judicial, rather than legislative, decisions are at the forefront For the present note that givings necessarily come at a cost and unless this cost is spread across dispersed taxpayers and citizens, it will activate interest groups. In many settings, this effect is orthogonal to the incrementalism problem. Thus, if a proposed road imposes costs and benefits, interest groups will line up to avoid one road and enjoy the other. A tax scheme that took from the winners and compensated the losers might work wonders, but in most cases incrementalism is not implicated.
97. See Donald G. Hagman, Windfalls and Their Recapture (discussing whether there is a feasible system to recapture gains in real estate value resulting from government action), in WINDFALLS FOR WIPEOUTS: LAND VALUE CAPTURE AND COMPENSATION 15, 15-19 (Donald G. Hagman & Dean J. Misczynski eds., 1978). A proposed road's precise location, once worked out, sends strong signals about the road's likely extension, so that there is more information rather than more dividing and conquering.
98. The owner of a preexisting commercial building will fight the ramp requirement because there is no other interest group to ally with and because the regulatory burden is serious. I have described the effort to get residential property owners to join in the defense as fruiless. But if incrementalist regulation begins to burden shops, it is possible that the earlier, regulated property owner can be induced to join in the defense-rather than root for the offense-in the interest of a level, competitive playing field. The inducement might be in the form of a reversal such that there would be a package combining the defeat of the proposal to expand retrofitting with a reversal of the earlier regulation. If this were about incremental smoking bans, a reversal would be valuable to the previously regulated restaurants. If it is about "irreversible" regulations, like costly ramps, reversal probably requires compensation. If the ramps in question could not have met a cost-benefit test then the reversal does not eliminate the social cost of the regulation, but from the private party's point of view, reversal can be accomplished through compensation. In these settings, it is surely the case that there is double rent seeking at stake.
99. See Michael D. Gilbert Single Subject Rules and the Legislative Process, 67 U. PITT. L. REV. 803, 811-831 (2006) (describing the history of, justifications for, and inconsistent application of the single-subject rule found in many state constitutions and applicable to legislation).