Todd Zywicki writes about the curious backwardness of much constitutional law analysis regarding commercial speech. Apparantly most of what's out there doesn't reference the most important economic works in the field of advertising analysis.
There are a few things that struck me. First, the analysis is crude because the opinions are largely black box. You can't easily ask "what are the economic theories that underly each of these opinions" and get a summary. You should be able to. If nothing else, law school students, in their yearly analysis of these cases could come to reasonable conclusions about the source of the economic theories of these opinions. In fact, they probably already do but nobody's actually distilling that intellectual work and populating a standard database with it.
If such a thing were done, you could then take the results back to the economists and find out how much of our constitutional analysis of commercial speech is based on fundamentally flawed economics. If most of it is, the chances of the Supreme Court reviewing new challenges to the status quo goes up. The chances of getting district and appellate courts to ignore stare decisis rises too.
On the other hand, if a lot of the analysis is based on articles which themselves are based on sound economics, there really is no problem. The difficulty is that with all that yearly wasted analysis going on in law school classrooms, we really can't tell which case is more true.
Posted by TMLutas at January 18, 2005 11:51 AM