Purchasing Submission: Conditions, Power, and Freedom

337 Pages·2021·3.236 MB·English

by  Philip Hamburger

PURCHASING SUBMISSION

Purchasing
Submission
Conditions, Power,
and Freedom
•
Philip Hamburger
HARVARD UNIVERSITY PRESS
Cambridge, Mas sa chu setts
London, England
2021
Copyright © 2021 by Philip Hamburger
All rights reserved
Printed in the United States of Amer i ca
First printing
Jacket design by Oliver Munday and Paul Spella
9780674270169 (EPUB)
9780674270145 (PDF)
Publication of this book has been supported through the
generous provisions of the S. M. Bessie Fund.
The Library of Congress has cataloged the printed edition as follows:
Names: Hamburger, Philip, 1957– author.
Title: Purchasing submission : conditions, power, and freedom / Philip Hamburger.
Description: Cambridge, Mas sa chu setts : Harvard University Press, 2021. |
Includes index.
Identifiers: LCCN 2021010319 | ISBN 9780674258235 (cloth)
Subjects: LCSH: Duress (Law)— United States. | Constitutional law— United States. |
Consent (Law)— United States.
Classification: LCC KF450.D85 H36 2021 | DDC 342.73 / 041— dc23
LC rec ord available at https:// lccn . loc . gov / 2021010319
For Jim Lindgren

Contents
Preface ix
Introduction 1
I The Prob lem
1 Poorly Understood 21
2 Examples 44
3 Regulatory Conditions 61
II Unconstitutional Pathway
4 Spending 75
5 Divesting and Privatizing Government Powers 87
6 Short- Circuiting Politics 103
7 Denying Procedural Rights 111
8 Federalism 124
viii Contents
III Unconstitutional Restrictions
9 Consent No Relief from Constitutional Limits 153
10 Consent within and beyond the Constitution 157
IV Federal Action
11 Va ri e ties of Federal Action 183
12 Force and Other Pressure amid Consent 198
13 Irrelevance of Force and Other Pressure 212
V Beyond Consent
14 Regulatory Extortion 221
15 Regulatory Agents 233
Conclusion 249
Notes 269
Acknowl edgments 313
Index 315
Preface
T
his book has its origins in a memorable after- dinner conversation.
Two de cades ago, at the home of a friend and fellow scholar, I asked
him why he had not yet published one of his most in ter est ing and
impor tant articles. To my astonishment, he replied that it was not pub-
lishable u nder the rules of his university’s institutional review board.
He explained that he had forgotten to obtain prior permission for
his research from the IRB and that if he published without its per-
mission, he would prob ably have difficulty getting permission to pub-
lish his f uture scholarship; he might even lose his job. Therefore, he
explained, he was circulating his work only in manuscript, like Rus-
sian samizdat.
I was puzzled and horrified. What was an institutional review
board? Why did my friend need its permission? Why was this not un-
constitutional? The answers involved federal funding. My friend’s
research was not federally funded, but in funding his university, the
federal government had pressured it to impose prior licensing even
on unfunded research and publication.