“Highest and best use” is a phrase Bob Zadek uses on The Bob Zadek Show to describe the standard he thinks should govern a person’s decisions about their own money, time and body: the individual’s own judgment about what will serve him best, rather than a determination made by government. The phrase appears in two distinct contexts in the surviving excerpts — housing policy and the criminalization of prostitution — and in both it is used to argue that a voluntary exchange is being wrongly overridden by someone who is not a party to it.
Homeownership and the housing crisis
In the 2011 episode with Gary Johnson, Zadek introduces the phrase while objecting to the government’s promotion of homeownership. Johnson had said that the root cause of the housing crisis lay in money being made available for homeownership because the government had politically decided homeownership was the best thing it could provide, with the result that lenders stopped looking at buyers’ ability to repay and housing got inflated beyond what a true free-market system would have produced Straight Talk with Gary Johnson (2011). Zadek seizes on the word “decided” and asks where government gets the chutzpah to decide that owning a house is better than renting. He says that is not for the government to decide; it is for humans to decide based upon the highest and best use of their money. He describes the government’s proper role as providing good information rather than being a cheerleader and encouraging people to make meaningful economic decisions that may not be good for them.
Johnson largely agrees but reframes the point. He says the message of homeownership may really be a good message, and that homeownership is a great way to invest the money you have, but that government backed the message up with very low-interest money and without the qualification to go along with being able to borrow that kind of money — hence the unintended consequences of government. Johnson also speculates about what would have happened without a bailout of the lending institutions: a very sharp downturn in the housing market, but with people stepping up to buy homes that yesterday were $100,000 and today were $8,000, and a housing market today that would be much higher and much more stable rather than one still propped up by banking institutions that have not yet come to grips with their losses.
The phrase does not reappear in the later portion of the Johnson episode. On public employee unions, Johnson says he sees nothing inherently wrong with collective bargaining, that if he were representing taxpayers at the table taxpayers would fare well, and that the process turns out badly when the negotiator is bought and paid for by the union on the other side. He supports Right to Work and says prevailing wage laws — Davis-Bacon — should not exist, with the marketplace determining pay on government construction projects. Zadek adds that Davis-Bacon is a federal statute dating to the 1930s requiring contractors on government projects to pay the prevailing wage, which he describes as the union wage, and says the laws have an ugly past. Johnson’s illustration is that as a result of Little Davis-Bacon legislation, three schools get built instead of four and three-quarters of a mile of asphalt gets laid instead of one mile.
Prostitution and the rationality of choice
In the 2014 episode with Maggie McNeill, Zadek uses the phrase in a different register. He asks whether most women who exchange sex for money are coerced into it or have made a reasonably rational choice that that was the highest and best use of their time America, The Most Sexually Hypocritical Nation on Earth (2014). The question is framed against the argument for continued criminalization — that poor women are drawn into prostitution out of desperation. Zadek compares the position of poor women to that of Jews in the Middle Ages and the Renaissance, who were prohibited from most professions but allowed to be money lenders because somebody had to do it, and who prospered at a job nobody else wanted.
McNeill answers that the question of limited options cuts the other way: if a woman has five options where others have fifteen or twenty, it cannot be moral to reduce that to four. She says she cannot think of many cases where a woman would have literally no options other than sex work, since there are always other jobs — being a maid, working in a sweatshop — and the woman chooses among them. She offers the example of a woman she calls Barbie, 28 years old, divorced, with two children, a high school education and no college, whose only other realistic work was as a cashier: long hours, not enough money to support two kids, and shifts scheduled when her children were home from school. Escort work paid far more and left her time with her children. Barbie was raised Catholic and did not like being an escort; roughly twice a year she would quit and go back to cashiering at the local grocery store, then after two or three months find she could not make bills and call McNeill back. McNeill says Barbie kept coming back to sex work as the best use of her time, her abilities and the most lucrative means, even though she did not really like it.
McNeill generalizes from the case: sex work is the only job you are required to love in order to have the right to do it, whereas a lawyer is not required to sign a statement that he loves being a lawyer, and she has met doctors who could not stand being doctors. Zadek’s reply is that whether you like it or not has nothing to do with whether it should be criminal, and McNeill agrees.
Voluntary exchange and the offended third party
The phrase sits inside a broader argument in the McNeill episode about who may criminalize a transaction. Zadek describes two adults, no coercion, both getting a benefit, both better off for the exchange, and yet committing a crime because somebody who was not a party to the transaction felt they should not have done it — a legislator who says it does not affect him in any way but will cause what they are doing voluntarily to be a crime. McNeill agrees that it is the criminalization, not the act, that is offensive, and argues that as gay people began to gain more rights, people began to look at other consensual sexual activities and ask why those should be criminalized either, so that the direction of travel was toward decriminalization or legalization. She says opponents needed a new way to sell criminalization, and that internal documents of one of the big abolitionist organizations say that if the transaction is framed as coercive — as sex trafficking, with talk of coercion and pimps — people will be more amenable to laws about it than if it is represented as prostitution. She calls the result a moral panic produced by a conscious and cynical redefinition of adult consensual prostitution into something coercive.
Zadek objects to the phrase “moral panic” itself, saying the two words should never exist side by side, since a panic attack because somebody else is doing something you wish they wouldn’t do is not a reason to panic. He asks what about the activity is more subject to coercion than any other activity on earth and who exactly the coercer is, and answers his own question with the payment itself: if being tempted by payment is coercion, he is a coerced lawyer every day. He contrasts the image of teenage girls dragged from third-world Asian-Pacific countries in shackles with garment worker sweatshops and underage illegal immigrants working long hours, and says the response should be to criminalize the specific bad behavior, not the profession. McNeill extends the point: nobody calls to abolish farming, clothes, iPads or iPhones, and nobody calls for banning maids despite coercive live-in domestic service situations — it is only when sex is involved that people insist on moral dimensions and narratives that do not exist. She describes so-called rescue raids in which women escape from rescue centers, including two in India who drowned trying to cross a river, and says such women considered swimming in a dangerous river preferable to staying in the rescue center.
Across episodes
The two treatments use the phrase for different subjects — a consumer’s housing dollar in the Johnson episode, a woman’s working hours in the McNeill episode — and the excerpts show no development of the concept between them; in both, Zadek poses it as a question about who decides, and in both the guest supplies the practical answer, Johnson on interest rates and lending standards, McNeill on the arithmetic of a cashier’s wages against escort work.
What the sources do not cover
The excerpts do not define “highest and best use” as a term of art, attribute it to any economist or legal doctrine, or connect it to property law or zoning. They do not say whether Zadek uses the phrase in other episodes, or whether any guest disputes the standard itself rather than its application. The Johnson excerpt breaks off at a caller segment on the commander-in-chief and war powers, and the McNeill excerpts break off mid-sentence at the start of a caller segment, so neither line of argument is shown reaching a conclusion.