Over at our sister site, Econlog, Art Carden has a post that touches on behavioral economics and its uses for and against liberty. Readers may remember I have written about how behavioral economics is somehow rarely applied to the regulators. Art touches on this tangentially in his Who Nudges the Nudgers?: the enthusiasts for nudging are almost certainly correct that we believe all sorts of silly things, have all sorts of flawed information, and make all kinds of bad decisions. A lot of these problems, though, are the results of flawed policies to begin with, policies enacted by the same groups of people…
Archives for July 2013
The current Liberty Law Talk is with Vern McKinley on a century of bailouts. Free markets in water: In the Books section this week Jonathan Adler reviews Lewis Solomon's America's Water and Wastewater Crisis. Kent Greenfield in The American Prospect on the road to polygamy and incest. David Bernstein: ACLU abandons its former opposition to state and federal double jeopardy prosecutions and urges the DOJ to proceed forthwith against Zimmerman. I guess the appointment of Big Sis won't help with this problem. Jerry Bowyer: Demographics and Middle East Revolutions. On this point, David Goldman's How Civilizations Die: (And Why Islam is Dying Too) is a…
The final corruption of the republic will not be televised, but it was reported in Thursday’s New York Times. According to a poll conducted by that newspaper, residents of the City That Never Sleeps are apparently awake at night because their guardians watch over them, manage their affairs, run their economy, secure their streets, do all this with relative competence but do not feel for them in the process. They hope their next mayor will. Insert your Anthony Weiner (no relation) joke here.
I’ve just returned from a vacation in Paris, which I report partly to induce envy (I went), partly to seek sympathy (I returned) and primarily—having favorably compared our revolution to theirs in this space—to give credit where due: The French have managed to maintain security amid an environment of openness in a way that has eluded us. Part of the reason is that the French internal security services keep a close watch on radical Islamic activity. Another is that they have not had to confront a calamity on the scale of 9/11. But one wonders, as I have speculated here before, whether some of the difference has to do with attitudes toward risk. The French may have accepted 99 percent security. We demand the full 100. And that extra percentage point—which is, not incidentally, delusive—is a costly one indeed.
Adam Liptak had an incredible report in yesterday’s New York Times that surely adds fuel to fire on the government’s warrant-less snooping. You will recall Clapper v. Amnesty International where a group of activists, lawyers, various groups challenged the 2008 surveillance law (FISA Amendments Act) permitting programmatic surveillance. Obama’s Solicitor General Donald Verrilli moved to dismiss for lack of standing because those suing could not show they had actually been harmed by the program. How, in effect, would they know if their communications had been intercepted. How indeed?
The Scotus Blog is having a symposium on the Recess Appointments Clause and the Noel Canning case. The symposium will last until Wednesday of this week.
My own entry – “The originalist and non-originalist cases for following the original meaning of the Recess Appointments Clause” — is up.
Here are a couple of excerpts:
The issues raised by National Labor Relations Board v. Noel Canning, which provides the Supreme Court with its first opportunity to interpret the Recess Appointments Clause, are easy to misinterpret. Many people view the case as political or partisan. After all, the recess appointments involved NLRB officials who decide issues that generate much political controversy. The D.C. Circuit decision was written from an originalist perspective by a conservative judge and joined by two Republican appointees. A Third Circuit decision, which also found the NLRB recess appointments unconstitutional on originalist grounds, was again supported by Republican appointees, with a dissent by a Democratic appointee.
But it is a serious and shortsighted mistake to view the issues at stake in partisan terms. The easiest way to see this is to go back eight years, when President George Bush was recess-appointing judges who were being filibustered by the Democratic Senate minority. At that time, a broad recess appointment power was attacked by liberals, including a court challenge joined by liberal icon Senator Ted Kennedy. The resulting Eleventh Circuit decision allowing a broad recess appointment in Evans v. Stephens was written by a Republican appointee, with a strong dissent advocating a narrow interpretation of the Clause on originalist grounds written by liberal judge Rosemary Barkett.
While the recess appointments power can obviously be partisan in the short run, in the long run it concerns nonpartisan matters about the allocation of constitutional authority and checks and balances. I have always viewed the Clause in these terms. When I wrote my 2005 article on the Original Meaning of the Recess Appointments Clause, my position led me to contest the Bush recess appointments and to agree with Ted Kennedy – not a familiar position for me. If we step back from today’s short-run politics, there are strong arguments based on the original meaning, on modern circumstances, and on maintaining limits on presidential power for following a narrow interpretation of the Recess Appointments Clause.
So we were told with the passage of the Dodd-Frank Act that too big to fail was now behind us. Except it isn't. In fact, the conditions supporting bank bailouts have only gotten worse with the nation's largest banks actually increasing in size and scope since 2008. TBTF, however, goes back farther than you might think. This podcast with Vern McKinley on his book, Financing Failure, discusses the regulatory history of bank bailouts rather than winding down insolvent institutions. Contrary to the Hank Paulson and Ben Bernanke narrative of the 2008 crisis, although the scope of the problem was new,…
Joseph Schumpeter wrote that one cause of the demise of capitalism would be the steady conquest of the private by the public sphere. To judge by the most recent revelations about PRISM, that may be the demise of democracy too. For this is by far its most troubling aspect: not merely the snooping, from which most of us are probably exempt, but the coopting of the vast private space that once stood between individual and state, which means no one any longer is. The blurring of the border between state and society, not merely the loss of privacy itself, may prove to be PRISM’s most enduring legacy.
The European Court of Human Rights in Strasbourg has granted, by 16 votes to one, an appeal by three men in England who have been sentenced to life imprisonment without the possibility of release. These sentences, the men claimed, breached their human rights according Article 3 of the European Convention on Human Rights, which forbids ‘inhuman and degrading treatment.’ The court agreed.
In its ruling the court said, inter alia:
If such a prisoner is incarcerated without any prospect of release and without the possibility of having his life sentence reviewed, there is the risk that he can never atone for his offence: whatever the prisoner does in prison, however exceptional his progress towards rehabilitation, his punishment remains fixed and unreviewable. If anything, the punishment becomes greater with time: the longer the prisoner lives, the longer his sentence.
The court added that prisoners must have their sentences reviewed, with regard to release, after 25 years at the latest, and regularly thereafter.
At first sight, this ruling might seem compassionate; the judges clearly feel, or claim to feel, for the convicted men. But actually the sentimentality of the judgment is but the reverse side of its implicit brutality, as well as being an invitation to legal arbitrariness.
Senate Majority Leader Harry Reid is threatening to change the filibuster rule to allow a majority to end a filibuster of presidential nominees waiting for a vote on senatorial confirmation. Under the existing rules, such confirmation votes can be filibustered, with cloture of the filibuster requiring 60 votes. A change in the Senate rules (like the change in the filibuster rule) can also be filibustered, and cloture here actually requires 67 votes.
There is a strong argument, however, that a majority of the Senate can change its rules, notwithstanding the Senate filibuster rule requiring 67 votes. I have argued (with John McGinnis) that the Constitution requires a majority of the Senate to be able to change the rules:
The third and constitutionally correct view is that the Senate can choose to retain the filibuster rule, but that a majority must be able to change it. The Senate can thereby exercise its full constitutional authority to fashion rules of procedure but past majorities of the Senate cannot put current majorities in a procedural straitjacket. Thus, a change in the filibuster rule by a majority is not a “nuclear” option but instead the constitutional option – the route contemplated by our founding document.
Of course, the Senate majority’s undoubted power to change the filibuster rule does not mean that doing so would be good policy.