September 7, 2022

The emotional cries of price gouging during the lockdown seem a distant remnant of the lockdowns, but the legal cases brought then, which are finally making their way through the courts, are a grim reminder of just how ignorant of economics and law our bureaucratic “betters” are. It makes one wonder: do government jobs attract the ignorant or do they simply lobotomize good men on arrival?

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One such case, just reversed and remanded, The People v. Quality King, showcases just how absurd NY’s gouging law is and how unprincipled its courts. The law reads:

During any abnormal disruption of the market for consumer goods…vital and necessary for the health, safety and welfare of consumers…no party…shall sell…such goods…for an amount which represents an unconscionably excessive price.

Lord knows, the geniuses up in Albany couldn’t have been more pleased with themselves. But discerning the law’s meaning would require work more for oracles than the citizenry. What constitutes an abnormal disruption, what products are vital and necessary, and what price is so excessive as to be unconscionable?

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Gouging, it would seem, was now to be adjudicated by the same legal standard Justice Potter Stewart famously set forth in his concurrence to Jacobellis v. Ohio for hard-core pornography: But I know it when I see it….” An otherwise laughable standard, if only we weren’t governed by it.

Since Jacobellis, thankfully, the Court has reconsidered such arbitrariness, writing in Grayned v Rockford:

Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. [Fn. omitted.] Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. [Fn. omitted.] A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. [Fn. omitted.]

Never has the void-for-vagueness doctrine been so superbly articulated and never so thoroughly ignored. Not only is the “unconscionably excessive” language in the New York statute unconstitutionally vague—defying the principle of separation of powers—the law itself illegally “delegates basic policy matters” to the judicial branch.

Image: Lysol in the crosshairs. YouTube screen grab.

In Quality King, the court was asked to decide at what point the defendant should have known there was an official disruption in the market triggering the statute. Was it the declaration of a national emergency by the president? No. A governor-declared state emergency? Certainly not. The court ruled it was when “the CDC tweeted, ‘[n]ow is the time for US businesses, hospitals, and communities to begin preparing for the possible spread of #COVID19’” (bolded emphasis added; italicized emphasis in original). Don’t know how they could have missed that.

Next, the court was asked to decide whether Lysol spray was “vital and necessary?” Admitting these words “are not defined in the statute,” the judges appealed to Websters to reimagine the phrase as “of the utmost importance” and “absolutely needed.” Despite the media’s 2020-induced hysteria, we have known throughout recorded history that respiratory viruses have never been transmitted from surfaces and, even if they were, soap and water effectively clean surfaces. Certainly, Lysol spray was neither of the “utmost importance” nor “absolutely needed.” But facts are anathema to a liberal court; what’s important is how people feel: Lysol was, “at least in the eyes of consumers, of the utmost importance and absolutely needed to address the terrible danger.”