And At Eighth Level, They Get +2 To Hit Rent-Seekers

Law

I like monks, particularly creative monks.

They make Chimay. That ought to be enough right there. They cut hit records. They live a life of asceticism, which I like both because it's an impressive spiritual discipline and because it leaves more Big Macs, iPads, and women for me. They are often self-supporting through crafts. Yes, that means that they live a life of spiritual and intellectual inquiry, but don't expect anyone else to pay for it.

Unfortunately for monks, the Nanny State is no respecter of asceticism or small-scale, self-sustaining craftsmanship.

Through the Institute for Justice, whose free speech blog I mentioned before, I learned about the dilemma of the monks of the Saint Joseph Abbey of St. Benedict, Louisiana. As part of their effort to be self-sustaining (which means not only no government handouts, but no financial support from the Catholic church), the monks of Saint Joseph make beautiful, simple, traditional caskets. I'd like to be buried in something like that, rather than in something that makes it look like I'm being buried in a grand piano or the desk of the senior partner at Skadden. The caskets are significantly cheaper than most, and you can buy one in advance and only pick it up — well, technically, have someone else pick it up — when you need it.

Of course that's a problem. The Institute for Justice explains:

Louisiana law purports to require that anyone who is going to sell a casket has to jump through all same regulatory hoops as a full-fledged mortuary operation that embalms bodies. See, selling "funeral merchandise" (including caskets) means you are a "funeral director." And to be a "funeral director," you must be approved for "good moral character and temperate habits" by a funeral-related government entity [of course, that's in Louisiana, but still], complete 30 semester hours at college, apprentice with a funeral director for a year, pay an application fee, and pass an exam. But that's not all. If you want your facility to sell caskets, it's got to qualify as a facility for funeral directing, including a showroom and "embalming facilities for the sanitation, disinfection, and preparation of a human body."

So, to sum up: Louisiana would like the monks of Saint Joseph to take college classes, intern with a funeral director for a year, pass an exam, pay a fee, be approved by a board, and convert part of their monastery into a professional mortuary in order to sell hand-crafted wooden caskets. If they don't, they are guilty of a crime. The Institute for Justice has sued in federal court on behalf of the monks, seeking an injunction against the relevant Louisiana codes. They assert that they violate the monks' due process, equal protection, and privileges and immunities rights. (That last represents the Institute for Justice's hope over its experience, I think — it's a seed oft planted by libertarian litigators in the fond hope it will someday yield fruit.)

Defenders of the regulatory state assert that such regulations are reasonably designed to protect the health and safety of the populace and defend them from fraud and mistreatment by bad apples within an industry. Certainly regulations can have that effect, to a limited extent. But it's credulous to think that's the only purpose, or even the primary purpose. High regulatory barriers to entry to crafts, professions, and marketplaces is merely a form of rent-seeking by the people — and conglomerates — who want to keep those crafts, professions, and marketplaces themselves. Established "funeral directors" want the law to require anyone who wants to sell a hand-crafted casket to intern for a year embalming bodies, because the established funeral directors already did that internship, and correctly perceive that the barriers to entry will deter most of the competition, both by craftsmen like the monks and by big national retailers like Costco. Either the monks or Costco can provide consumers with a cheaper product (though frankly, it's damned inconvenient to buy your caskets in those giant five-packs.) Costco or the monks may well provide more variety. Certainly you will not find anything like the beautiful, simple caskets made by the monks of Saint Joseph at your local chain funeral home. But the funeral homes — which are increasingly run by conglomerates that approach monopolies — don't want you to have any more price or selection choices than they want to give you, because that's bad for their business. So they rent-seek. Using connections, influence, and campaign donations, they get government to create high barriers to entry. They are modern guilds.

The popular perception is that big business is against regulation. That's only true to a certain extent. Big business doesn't like regulation that makes it difficult to operate. But big business is not adverse to regulation that makes it difficult to enter the market in the first place and compete. Hence, big established toy manufacturers are not the ones protesting vigorously against the ruinous CPSIA we've blogged about, which makes it prohibitively expensive for small producers of kids' toys, clothes, and books to enter the market.

So should we abandon regulation entirely? No. But we need to keep in mind that all regulation has costs, and we need to be more skeptical about, and critical of, the need for particular regulations and their connection to their putative purpose. We need to stop doing industry's leg-breaking for it. After all, in a country where you hear about a story a month about funeral homes mistreating or abandoning bodies, it doesn't really seem that funereal regulation does a great job of protecting the public from abuse — even if it does a pretty good job of protecting them from craftsman monks.

Last 5 posts by Ken White

26 Comments

25 Comments

  1. Imaginary Lawyer  •  Aug 12, 2010 @9:31 am

    I must have slept a little late today. It appears that "Nanny State" has stopped meaning instances where the government is overprotective and uses regulations to treat people like they're four years old, and has now expanded to encompass any regulation at all.

  2. Ken  •  Aug 12, 2010 @9:40 am

    Maybe Regulatory State would have been a better term there. Although part of the Nanny State is passing regulations ostensibly for our protection that actually aren't about our protection.

  3. Patrick  •  Aug 12, 2010 @10:01 am

    Who will protect us from unlicensed, uncertified coffins, if not the nanny state?

  4. Grandy  •  Aug 12, 2010 @10:13 am

    After all, in a country where you hear about a story a month about funeral homes mistreating or abandoning bodies, it doesn’t really seem that funereal regulation does a great job of protecting the public from abuse — even if it does a pretty good job of protecting them from craftsman monks.

    But the solution here is obviously better regulation.

    The italics are "scare" italics, something I just invented.

  5. Rich  •  Aug 12, 2010 @10:14 am

    I have always wanted to be a Brain Surgeon. That whole diploma intern experiance thing has been holding me back Plus a basic understanding of the use of grammer. Hey I have a right to practice medicine thought like everyone else should. God darnit. I have never wanted to be a lawyer though Commen sense would get in the way.
    Taking a extreme example like these monks.Who should be given a little leeway. Using it to justify letting people get home embalming kits and Lego Coffins does not show much Commen sense does it.

  6. Base of the Pillar  •  Aug 12, 2010 @10:25 am

    Where else to hide all of the quivering palm victims?

  7. Base of the Pillar  •  Aug 12, 2010 @10:26 am

    And I think Grandy broke teh intraweb fontificator.

  8. Patrick  •  Aug 12, 2010 @10:56 am

    GRANDY WHAT THE FUCK DID YOU JUST DO TO OUR FONTS!!!

  9. Charles  •  Aug 12, 2010 @11:06 am

    GRANDY WHAT THE FUCK DID YOU JUST DO TO OUR FONTS!!!

    Move along. Nothing to see here.

    You aren't taping me, are you? MOTHERF…

  10. Grandy  •  Aug 12, 2010 @11:45 am

    I really don't know what the hell you are talking about. I apparently botched the closing italics tag on my post initially.

  11. Ken  •  Aug 12, 2010 @12:13 pm

    Rich:

    The better analogy would be if the state required you to study to be a brain surgeon in order to sell scalpels and drills used in brain surgery.

  12. aczarnowski  •  Aug 12, 2010 @12:46 pm

    Say it with me boys and girls, Regulatory Capture.

  13. David  •  Aug 12, 2010 @12:54 pm

    Doesn't surprise me that this is Louisiana. The license florists. Lord knows what could happen if unlicensed florists were allowed to make unharmonious bouquets.

    http://www.legalaffairs.org/issues/May-June-2004/scene_joyce_mayjun04.msp

  14. Imaginary Lawyer  •  Aug 12, 2010 @3:39 pm

    Patrick, presumably the same companies with an interest in preserving this regulation would just have to use the power of the marketplace rather than going through the state. You know, engaging in unethical business practices that aren't actually illegal, on the assumption that they won't ever get sued or that if they do, it'll be worth it.

  15. Dwight Brown  •  Aug 12, 2010 @7:08 pm

    "….it’s damned inconvenient to buy your caskets in those giant five-packs"

    With a little bit of work, though, they're very handy around the house or apartment. Coffee tables, bookshelves, wine storage…your average casket has 1,001 uses.

    1,002 I guess, if you count the intended purpose.

  16. Grandy  •  Aug 13, 2010 @5:59 am

    Patrick, presumably the same companies with an interest in preserving this regulation would just have to use the power of the marketplace rather than going through the state. You know, engaging in unethical business practices that aren’t actually illegal, on the assumption that they won’t ever get sued or that if they do, it’ll be worth it.

    What practices? How will those practices hurt the Monks or Consumers (or both)? And how is the existing regulation protecting us from those practices?

  17. Patrick  •  Aug 13, 2010 @6:33 am

    I didn't see your comment, Imaginary Lawyer, until Grandy highlighted it for me, but I agree with his questions. What the hell are you talking about?

    Do you believe that heavy casket regulation prevents cemetery owners, including the US government at Arlington, from dumping the wrong bodies into the wrong graves? That heavier casket regulation in Georgia and Illinois, two states that regulate the mortuary professions stringently, would have stopped the two most horrendous cases of burial fraud in the past decade from occurring?

    Why should poor people have to pay five thousand dollars, which they can probably ill-afford, to grieve for their immediate ancestors and relatives? The people these monks are selling coffins to aren't the type whose grandparents bought burial insurance. I don't know whether you handle personal injury suits, but I do, and that includes death suits. The cost of a death can exceed five thousand dollars just for the box and a hole…

    which is always placed on otherwise worthless land. You DO know that one of the most lucrative uses for land that doesn't "perk," which is often impossible to sell, in states like Louisiana where many people use well water, is a cemetery…

    Not to mention the church and the priest and the food and the medical bills that preceded the death?

    200 years ago, many inhabitants of this country would place their honored dead in a tree, where the birds would gently remove them from the world and return them to earth in their own way. Now that's illegal, even for Indians.

    When I die, I hope that my friends and family will erect a pyre of cheap wood (cost $50) and immolate my corpse with gasoline (cost $20), paying for the ceremony from the cash in my wallet. I'll be just as dead as if they'd put me into a box made of mahogany and brass fittings, and they'll be just as happy to have me out of the way.

  18. Grandy  •  Aug 13, 2010 @9:04 am

    Patrick, re: your preferred method of passing on from this world to the next one, you left out "and then they all get roaring drunk and share their pain and good memories". At least, that's what I would prefer people to do but I expect you'll be similarly inclined. For me, the sharing of the good memories is important, because scientists currently project I'm not going to leave many.

    Outside of that, I would add that I wouldn't mind being burned in one of those coffins the Monks of La made.

  19. Imaginary Lawyer  •  Aug 13, 2010 @10:04 am

    Patrick, what the hell are you talking about? My comment was that this regulation is obviously motivated by an industry trying to crush smaller, less financially exploitative competitors. Regulations are simply one tool for accomplishing this goal. In the absence of such regulations, they'd just make do by acting through the market rather than the government.

    You seem to have interpreted this as support for the regulations. It isn't.

  20. Patrick  •  Aug 13, 2010 @11:31 am

    Your sarcasm didn't show IL. It's a weakness of the medium.

    As you were.

  21. The Californian  •  Aug 13, 2010 @12:05 pm

    Patrick, your pyre will run you a bit more than $70 when you add in the municipal and state burn permits, compensation for fire marshal supervision, any mandatory pre-burn brush clearance, safety equipment, warning signage…

  22. Gordon  •  Aug 13, 2010 @5:58 pm

    Can I get a coffin filled with Chimay Red. ummhh… beer

  23. Scott Jacobs  •  Aug 14, 2010 @12:31 am

    …Environmental Impact Study, Appeal for the refusal of Permit due to the presence of some rare cockroach of some-such nearby…

  24. Kit Kittrell  •  Aug 14, 2010 @9:15 am

    The funeral industry has long been prepared for retail competition in casket sales. They shift their markup to the non-negotiable service charge and lower the casket prices to undercut the third-party retailer. As in home-schooling and home-birthing, the consumer must disconnect form the industry and take matters into their own hands. Cut out the $7,000 funeral bill and do it yourself.

  25. VMS  •  Aug 21, 2010 @12:02 pm

    How can Costco sell caskets under these regulations?

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