Since Radley mentions, in his Tech Central Station piece, my previous loyal opposition to his Commerce Clause attack on the national Do Not Call list, I figure I might as well chip in with a couple of extra points. (I still stand by that analysis, incidentally. If the Framers felt like prohibiting state level trade barriers without granting a general power to regulate commerce, they could’ve done that. They didn’t.)

First we’ve got this nanny state business, which I just find confusing. It’d be paternalistic if they put you on the Do Not Call list… but you have to request to be on it. So I’m confused as to how this counts as the government “saving you from yourself.” It sounds, if anything, more like you saving yourself from yourself. The offensive thing about the nanny state is that government presumes to make personal decisions for you, to know better than you do how much fat you should eat, whether you should smoke, and so on. That’s not happening here.

Then the “who enforces” argument. Attacking the analogy to “no trespassing” signs, Radley observes that these are only enforced against, say, solicitors, when someone actually complains to police. True enough. But same with the Do Not Call list. And the DNC is enforced by feds rather than locals. Well, yeah. And if trespassers had the ability to teleport onto my lawn from out of state, then teleport out, we’d probably have federally enforced trespassing laws as well. The obvious answer there is that it just makes no sense to try to have 50 (or more) regimes of subnational telemarketing enforcement.

Next, there’s what I’m going to call the “reasonable expectation” argument, which, alas, is every bit as circular here as it is in Fourth Amendment jurisprudence, because it’s the law itself that determines your expectations. I guarantee that in no other sphere does Radley want this argument to go across as a determinant of one’s first-level property rights. Once you’ve got a backdrop of rights established by some independent justification, of course, expectation arguments might be fine. But this is, I think, a novel arena, even though phones have been around for a long time now. So it won’t do to say: “oh, well, you connect your phone line, you de facto consent to all these calls.” You might just as well be said to consent to zoning regulations by moving into a new neighborhood, or to drug laws by coming into the United States. What you reasonably expect in this instance is a function of what we (fail to) enforce. Ten years from the creation of DNC, we’ll all have different expectations.

Finally Radley asks, somewhat rhetorically, why we should correct the outcome of the market, which in this instance doesn’t seem to have produced a lot of private telemarketing screening options. But here the familiar libertarain rhetoric (which I like to spout as much as anyone) about a preference for private arrangements goes off the rails, and gets quite disconnected from its own justifcatory grounds. We expect makets to work when costs and benefits are internalized. That’s not the case here and, pace Coase, it ends up being an obstacle to one way we might try to get around the problem, via direct contract with telemarketers themselves. Aside from the obvious transaction costs, going that route has the obvious flaw of being tantamount to paying the school bully for refraining from flicking your ear. You’ve created a brisk demand for ear-flicking threats.

So the alternative, which is what Radley considers, is some kind of call screening, a different kind of market solution. But why would we suppose that the failure of this kind of second order market to emerge tells us anything about the efficiency of the current market outcome? The point is precisely that telemarketers don’t have to factor non-buyer disutility into their calculus when deciding whether to place calls. So the fact that people don’t pay for screening services might tell you something about the per-person disutility involved, but not at all whether the status quo is actually efficient. Even assuming relatively low such disutility, assuming low per-call costs for the marketers, it’s highly plausible that the gains from trade the marketers realize are lower than the aggregate of thousands of non-buyers whose separate annoyance factors still each fall below the cost of screening.