The most recent edition of the Liberty Forum involves a discussion of behavioral law and economics, the subject of a couple of my posts on statism. See here and here. In these posts, I noted that most economists simply applied the new insights into cognitive bias to market actors but not to government actors. Happily, Josh Wright and Doug Ginsburg (as well as some of the commentators) do not make this error but apply the challenges to rationality to government actors as well: Behaviorists [also] tend to underestimate the costs of implementing proposed policies—an error we term the “government intervention…
Archives for February 2012
In this edition of Liberty Law Talk, we discuss with Russell Hittinger, the William K. Warren Chair of Catholic Studies at the University of Tulsa, Jacques Maritain’s Scholasticism and Politics, recently republished by Liberty Fund. The text is
a collection of nine lectures Maritain delivered at the University of Chicago in 1938. While the lectures address a variety of diverse topics, they explore three broad topics: 1) the nature of modern culture, its relationship to Christianity, and the origins of the crisis which has engulfed it; 2) the true nature and authentic foundations of human freedom and dignity and the threats posed to them by the various materialist and naturalistic philosophies that dominate the modern cultural scene; and 3) the principles that provide the authentic foundation of a social order in accord with human dignity.
The Criminal Justice System as the Enemy of Liberty
Over the last generation, few legal scholars have been more influential than Harvard Law School’s Professor William J. Stuntz. In a brilliant legal career that began as a student, and later a faculty member, at the University of Virginia School of Law – where I had the privilege of being one of his students twenty years ago – Stuntz consistently blazed new trails in criminal procedure scholarship. Before he entered the scene, much of the literature divided along the usual left-right lines. Liberals generally defended the Warren Court’s activism in criminal procedure as promoting fairness and equality, particularly for minorities and the poor, while the field’s few conservatives bitterly criticized the Court for, in effect, handcuffing the police with improper procedural mandates that made it harder to solve crimes.
Both sides, Stuntz argued, were wrong. Miranda v. Arizona (which made advice of rights a constitutional prerequisite to the admissibility of custodial confessions), Mapp v. Ohio (which required states to exclude at trial illegally seized evidence), and other controversial Warren Court decisions neither handcuffed the police nor made criminal trials more just. To the contrary, they fueled the politicization of criminal law, making law enforcement’s job easier instead of harder. They also worsened problems of unfairness and inequality by giving prosecutors enormous, virtually unchecked power to coerce innocent and guilty defendants alike to waive their constitutional rights and plead guilty.
Brian L. Frye (Hofstra University - School of Law) has posted Justice John Marshall Harlan: Lectures on Constitutional Law, 1897-98 on SSRN. Here is the abstract: A transcription of Justice John Marshall Harlan's lectures on constitutional law, delivered at Columbian University Law School in 1897 and 1898. I had a quick look at the lectures, which are over 250 pages long. They look quite interesting and differ significantly from the way a constitutional law class would be taught today -- not just because there is a different caselaw today, but because he is very focused on the framing and history. Here is the first paragraph…
Yesterday’s post on the climate change cases before the D.C. Circuit promised a few additional thoughts on the institutional aspects of the controversy. Here they are, delivered in customary good cheer.
By any measure, the EPA’s GHG regime constitutes the most ambitious, expensive, and expansive regulatory regime in the agency’s history. No consumer, no industry, no state will remain unaffected. As the EPA and the climate change “community” have emphasized, the problem is global and long-term. We’re not talking about removing a discrete pollutant (lead) from a few products (gasoline, paint). We are talking about a program that must be all-encompassing and run, with increased stringency, from here to eternity.
No one decided that we should do this. Certainly, the Congress didn’t decide it. The Supreme Court didn’t, or says it didn’t (it just told the EPA to follow the law). The EPA didn’t, or at least can plausibly claim that it didn’t and doesn’t (it’s just following the law and the Supreme Court). We are simply sliding into a bureaucratic nightmare.
In light of Liberty Fund's republication of Jacques Maritain's Scholasticism and Politics, I discuss with Russell Hittinger Maritain's defense of liberty from his perspective of integral humanism. The idea forms the core of the text, which also provides a method for imagining an innovative response to soft-despotism. According to Liberty Fund's description, the book is a a collection of nine lectures Maritain delivered at the University of Chicago in 1938. While the lectures address a variety of diverse topics, they explore three broad topics: 1) the nature of modern culture, its relationship to Christianity, and the origins of the crisis which has…
One of the interesting aspects of the Republican primary season this year is that one of Mitt Romney's biggest defenders is Ann Coulter. Coulter is considered by many to be a "far right, social conservative, Republican." And Romney, of course, is deemed by many such conservatives to be the person who they least desire to be the nominee -- anyone but Romney seems to be the refrain. Yet, Coulter has marshalled all of her considerable rhetorical resources to defend Romney. Coulter appears to have two main reasons for preferring Romney. She believes he is the only candidate who can beat…
Tomorrow and the day after, a panel of the U.S. Court of Appeals for the D.C. Circuit (Judges Rogers, Sentelle, and Tatel) will hear oral arguments in a raft of cases challenging the Environmental Protection Agency’s rules on the regulation of carbon dioxide (CO2) and other greenhouse gases (GHG). In its scope and consequences, the EPA’s climate change program exceeds even ObamaCare and Dodd-Frank: it threatens to engulf any firm, facility, and product that emits CO2 above minimal threshold amounts. However, the EPA’s program in this case does not rest on a 2,000-page enactment by a temporarily deranged Congress, nor even on a unilateral bureaucratic power grab. Rather, it proceeds, with seeming and depressing inexorability, from a series of crabbed and tendentious judicial and administrative interpretations of a few stray provisions in the Clean Air Act (CAA)—a statute that long pre-dates the climate change crisis or obsession (take your pick) and, by uniform consensus, is designed to tackle local air pollution, not a global calamity.
What the D.C. Circuit is looking at is a fantastically expensive and convoluted regulatory program that is uniformly acknowledged to produce no discernible climate change benefit whatsoever. Yet that exercise in pointless social mortification—a kind of permanent socio-economic Lent without Easter—threatens to elude any of the ordinary checks and controls: cost-benefit comparisons; judicial arbitrary and capricious review and statutory limitations; congressional or presidential intervention.
Today’s post discusses the trajectory of the climate change train wreck and its principal legal questions. Tomorrow’s post will address the broader institutional questions.
Two years ago, in his annual State of the Union address, President Obama publicly upbraided the Supreme Court, six of whose members were seated immediately before him in their robes, alongside chiefs of the military.
The President delivered this unprecedented public rebuke because a week earlier the Court had upheld the legality of the corporate and union financing of political advertising, something not to his advantage, and hence not to his liking. He declared:
‘With all due deference to the separation of powers, last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests.’
From their expressions and body language, the six justices were not too pleased by receiving that pubic reprimand from the President who may yet in turn rue having delivered it. For yesterday (February 21), the Court announced that later this year it will hear a case with potential to inflict on the President serious political damage in the immediate run-up to the November elections.
The case that the Court has decided to hear is that between Abigail Fisher and the University of Texas. The plaintiff is a young white woman who, in 2008, unsuccessfully applied to the University of Texas at Austin. She claims that her application was unlawfully turned down on account of race and in contravention of her Fourteenth Amendment constitutional right to equal protection under the law. Her grounds for making this claim are that the University admitted in preference to her several academically less well qualified minority applicants without any good cause.