Because of my recent research on Obesity and Advertising Policy, I have inadvertently stumbled into the periphery of the constitutional regulation of commercial speech. After grazing a little bit in that literature, I was struck by the remarkable shallowness in that literature about the economic analysis of advertising. So out of curiosity, I ran a couple of word tests just to see the degree with which economic analysis is found in commercial speech law review commentary. This is of course far from rigorous, but it may be reflective of the state of the literature.
I searched Westlaw’s tp-all database. First, I used the search string “commercial speech” & advertising, and got back 4100 hits. Very crude, but perhaps reflective of the high interest in this topic. Next, I searched for “”commercial speech” & advertising & stigler”, looking to pick up references to Stigler’s old chestnut, The Economics of Advertising. The search results fell to 87 hits, suggesting that there are over 4000 law review articles that touch on commercial speech and advertising and do not refer to the seminal article in the economics of advertising. Finally, I ran a search to try to pick up the influence of Ben Klein and Keith Leffler’s famous article, “The Role of Market Forces in Assuring Contractual Performance”, from the Journal of Political Economy, which lays out the “quality assuring” or indirect information theory of advertising. A search for “”commercial speech” & advertising & (klein /s leffler)” generates only 19 hits (almost every one of these articles also cites Stigler), and of those, roughly half were by economists, primarily FTC-influenced law & economics scholars such as Fred McChesney (4 references), Tim Muris, Richard Craswell, Howard Beales, Jack Calfee, and Terry Calvani, most of which are policy-oriented, not disquisitions on constitutional law. The only non-FTC influenced scholar who cites Klein & Leffler in the same article with “commercial speech” twice or more is John McGinnis. A search for “”commercial speech” & advertising & (“Type 1” “type 2″ /s error)” makes zero hits, substituting variations on “false negative” and “false positive” raises the result to 46.
Obviously, this is terribly crude. But it is consistent with my casual observation–constitutional law analysis of First Amendment commercial speech doctrine and advertising seems to be largely uninformed by the economic research of advertising during the past two decades.
I leave it to someone else who actually reads and writes in first amendment jurisprudence to tell me whether my crude observations are accurate. Perhaps the ideas are kicking around in the commentary, just with different citations or simply different terminology than that used by economists. So if someone has a better search string that I should use to try to pick up the use of economic analysis in First Amendment Commercial Speech jurisprudence, by all means pass it along to me. But, if it is the case that most discussions of commercial speech lack deep understanding of the economics of advertising, it raises at least two questions in my mind. First, what is the model of advertising that structures the analytical inquiry in this literature?
Second, it may raise an interesting cultural issue about academia–are the cultures of law & economics and First Amendment jurisprudence so different that there is little exchange across them? If so, why? My intuition is that with few exceptions law & econ scholars generally don’t do First Amendment, and First Amendment scholars don’t do law & econ. The thinking and cultures in these two fields just seem to be so different, and the people drawn into the two fields appear to be so different in intellectual interests, that maybe the cultural gaps are just too deep to make possible many people writing across the gap. Considering that most constitutional law scholars don’t even seem to do public choice, which would seem to be an obvious and relevant field to work with, perhaps law & econ is even further out on the periphery of the interest and expertise of such scholars. Similarly, most law & econ people don’t do constitutional law, and to the extent they do, they seem to focus more on structural analysis rather than First Amendment or individual rights/liberties analysis.
As I said, I don’t do First Amendment myself (there is basically no mention of it in my obesity article), so I certainly am not throwing stones here, I’m just making an observation. Given the thicket of constitutional law and the cost associated with trying to learn all of this constitutional law, I also certainly have no plans to enter this mess myself.
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