Calling a Cost a Cost: NY Anti-Free Speech Edition

Seems the State of New York is going to the Supreme Court for another of its protectionist regulatory policies. Yesterday the US Supreme Court granted a petition to hear the case of Expressions Hair Design v. Schneiderman. As the WSJ explains, at issue is whether New York’s regulations concerning credit-versus-cash retail prices constitute a First Amendment speech violation.

The problem stems from the fact that the State of New York has attempted to have its cake and eat it to by ignoring economic rcredit-card-1520400_1280ealism and prohibiting retailers from calling a cost a cost. The State prohibits retailers from charging customers a fee for using a credit card, but allows retailers to give customers a discount if they use cash. A group of hair salons, led by Expressions Hair Design, sued the state for infringing on its right of free commercial speech. The salons won their initial case, which was reversed on appeal. Now SCOTUS will have an opportunity to weigh in.

The Cost of Using Credit
From an economic perspective, the issue is fairly simple. Credit card companies charge vendors a fee every time a consumer pays with plastic. How much depends on the credit card company, whether the transaction is run as debit or credit, and the amount of the transaction. But typically, the fee is around 2-4% of the amount of the purchase. This reduces the amount of revenue retailers receive when the customer uses plastic. Put another way, when customers choose to use plastic, it raises the retailer’s cost of doing business for that sale.

In a free economy, retailers could choose one of three options: 1) force the credit card user to pay the additional transaction fee, which raises the price at the point of sale, 2) charge the same price for all buyers, implicitly charging cash users more for the product to subsidize the costs of the plastic users, or 3) pass the transaction fee savings on to cash users by giving them a discount. The only economic difference between 1 and 3 is what the sticker price is relative to the price actually paid. In #1, credit card users pay more than the sticker price; in #3, cash users pay less than the sticker price. In #1, the credit card fee is made explicit by adding it on just for those consumers who use plastic. In #3, the sticker price includes (i.e., hides) the cost of using a credit card and by default is the price everyone pays unless they are aware of the cash discount. In either case (1 or 3), the retailer is price discriminating between cash and plastic users. Or the retailer could simply post two sets of prices, one for credit and one for cash, which would then beg the question of “why the difference?” And that is where the NY regulations become a problem.

The NY regulation prohibits retailers from choosing #1 but allows them to choose #3. In other words, the regulation allows retailers to price discriminate, but only if they present it as a discount for cash users rather than a surcharge for credit card users. In short, NY allows the exact same price discrimination between two sets of consumers, but restricts the speech of retailers in how they are allowed to describe that price difference. As Expressions Hair Design argues in their complaint, this places a burden on the business in how it is allowed to explain or justify what is otherwise a perfectly legal two-price pricing system since the regulations make it illegal for employees to explain that the difference between the cash price and the credit price is due to the cost of the credit transaction. It would be like passing a law prohibiting a restaurant from explaining the cost of its steaks went up relative to its pork chops because the price of beef rose.

Framing matters
Why would the State of New York prohibit credit card surcharges but not prohibit cash discounts? Consumers respond to price signals, so how those signals are presented matters. If consumers are charged an extra fee for using their credit card, it makes the cost (price) of using the credit card very obvious to the consumer and she is more likely to change her behavior by using cash instead. This would be bad for the banks that make a significant amount of money on credit card swipe fees. Not surprisingly, banks support laws prohibiting explicit credit card surcharges. However, as noted in #2 above, charging cash and plastic users the same forces cash users to subsidize the purchases of plastic users, which also tends to penalize lower income persons relative to wealthier shoppers. So allowing retailers the opportunity to provide cash discounts is socially superior to not allowing differential pricing. However, the NY’s prohibition on calling a cost a cost and explaining the price difference for what it is, is not only an infringement on speech, but unjustifiable as anything other than an attempt to mislead consumers and protect credit card issuers.

11th Annual Conference on Empirical Legal Studies

11th Annual Conference on Empirical Legal Studies (CELS)
Duke Law School, Durham, North Carolina
Friday, November 18 and Saturday, November 19, 2016

Duke Law School is pleased to host the 11th Annual Conference on Empirical Legal Studies (CELS) on November 18-19, 2016. CELS is a highly regarded interdisciplinary gathering that draws scholars from across the country and internationally and is sponsored by the Society for Empirical Legal Studies. The conference brings together hundreds of scholars from law, economics, political science, psychology, policy analysis, and other fields who are interested in the empirical analysis of law and legal institutions. Papers are selected through a peer review process and discussion at the conference includes assigned commentators and audience questions.

Paper submissions are due by July 31, 2016.

For more information about the conference click here (

Do Medical Marijuana Laws Increase Hard-Drug Use?

According to a recent study by Yu-Wei Luke Chu in the Journal of Law & Economics, the answer is not just “No,” but that medical marijuana laws may actually decrease heroin use as consumers substitute the legal marijuana for heroin. Below is the abstract:

Medical marijuana laws generate significant debate regarding drug policy. For instance, if marijuana is a complement to hard drugs, then these laws would increase the usage not only of marijuana but also of hard drugs. In this paper I study empirically the effects of medical marijuana laws by analyzing data on drug arrests and treatment admissions. I find that medical marijuana laws increase these proxies for marijuana consumption by around 10–15 percent. However, there is no evidence that cocaine and heroin usage increases. From the arrest data, the estimates indicate a 0–15 percent decrease in possession arrests for cocaine and heroin combined. From the treatment data, the estimates show a 20 percent decrease in admissions for heroin-related treatment, although there is no significant effect for cocaine-related treatment. These results suggest that marijuana may be a substitute for heroin, but it is not strongly correlated with cocaine.

SCOTUS Rejects USDA’s Raisin Cartel

A couple years ago I posted (here) about a lawsuit progressing through the courts concerning the USDA’s raisin marketing order. The Raisin Administrative Committee (RAC) basically sets a quota on the amount of raisins that can be marketed in a given year as a way of maintaining high-priced raisins. The RAC requires produ799184_1280x720cers to turn a portion of their crop over to the RAC, which then markets the “excess” raisins to other countries or uses.

Today, the US Supreme Court ruled in Horne v. Department of Agriculture that the USDA-sponsored Raisin Administrative Committee’s process amounts to an unconstitutional governmental “taking”. Apparently the decision is limited to the raisin program and it opens the doors to other ways for the USDA to control the raisin market, but the decision also raises questions about the constitutionality of other agricultural commodity programs.


Tesla, Dealer Franchise Laws, and the Politics of Crony Capitalism

About a year ago I posted a couple of pieces (here and here) related to auto dealers’ attempts in various states to shut down Tesla’s direct-to-consumer distribution system. Dan Crane (Michigan Law) has a recent paper on the issue available at SSRN. Below is the abstract:

Tesla Motors is fighting the car dealers’ lobby, aided and abetted by the legacy Detroit manufacturers, on a state by state basis for the right to distribute its innovative electrical automobiles directly to consumers. The Tesla wars showcase the important relationship between product innovation and innovation in distribution methods. Incumbent technologies may block competition by new technologies by creating legal barriers to innovative distribution methods necessary to secure market acceptance of the new technologies. While judicial review of such special interest capture is generally weak in the post-Lochner era, the Tesla wars are creating new alliances in the political struggle against crony capitalism that could contribute to a significant re-telling of the conventional public choice story.

10th Annual Conference on Empirical Legal Studies

The 10th Annual Conference on Empirical Legal Studies will be held October 30-31, 2015, at Washington University in St. Louis. Sponsored by the Society for Empirical Legal Studies, and hosted by Washington University School of Law and the Center for Empirical Research in the Law, the conference will bring together hundreds of scholars from law, economics, political science, psychology, policy analysis, and other fields who are interested in the empirical analysis of law and legal institutions. The Call for Papers will be published in April. Submissions are due June 26. See the conference page for more details.

Ex Ante vs Ex Post Licensing

Ralph Siebert has an article in the Journal of Competition Law & Economics on “What Determines Firms’ Choices Between Ex Ante and Ex Post Licensing Agreements,”  which looks at the timing of technology licensing agreements around research joint ventures in the semiconductor industry. He finds that expectations about potential patent blocking affect the decision of when to license, as do transaction costs, and technology and product market characteristics. His data don’t include much about the specifics of the licensing agreements, but the results are pretty interesting nonetheless. Below is the abstract:

I investigate whether licensing agreements are an appropriate tool for firms to resolve blocking and hold-up problems in high-tech industries. I use a novel and comprehensive database on licensing agreements as well as detailed firm-level information on revenues and patents in the semiconductor industry from 1989 to 1999. It would be interesting to evaluate the post-1999 time period, but data constraints prevent me from doing so. I estimate a bivariate probit model accounting for endogenous selection. I find that different types of licensing agreements, that is, ex ante and ex post licensing agreements, help firms eventually resolve realized blocking. Firms engage in licensing before inventing a new technology (ex ante licensing) if they believe competitors hold patents that can potentially block the commercialization of their technology. In contrast, firms engage in licensing after inventing the technology (ex post licensing) if other firms hold patents that block the commercialization of the technology. The estimation results also show that firms’ activity in technology and product markets plays an important role in explaining choices between ex ante and ex post licensing agreements. It should be kept in mind that the semiconductor industry is high-paced and the data patterns might have changed after 1999.