The Supreme Court’s decision in King v. Burwell is due out shortly. As a special service to faithful and even occasional readers of this blog, I proudly present in the flesh, or at least in moving pictures, the obscure characters who produced the case. The highlight of the Competitive Enterprise Institute’s annual dinners is a staff-produced movie, starring CEI’s magnificent principals and employees. This year’s movie, originally shown to great acclaim at this year’s June 11 dinner, appears here by special permission (thanks, Annie!). To catch all the inside jokes you have to know and work with these guys and gals—good,…
Archives for June 2015
Karl Llewellyn’s classic Bramble Bush introduces law students to the case method and explains that precedents have both a minimum and a maximum value. Playing within that field and finding the point in both directions “beyond which it does not make sense to go” is central to establishing the fair meaning of judicial decisions. When one is moved, as I am here, to brand the city hall shenanigans that lead to the litigation in Jackson v. San Francisco, as blatant defiance of the Supreme Court’s decisions affirming the individual right to arms, Llewellyn’s instructions help to slow and unpack that reflex.
An op-ed in today’s New York Times argued that not enough lawyers served the poor. The author, Theresa Amato, therefore proposed that the government should subsidize lawyers and lawyering. It should provide more funds for the Legal Service Corporation, a federal entity that offers legal services for the underserved. It should provide more loan forgiveness for lawyers who work in the “public interest.” Law schools should provide more clinics to make lawyers practice ready for low-income service
Ms. Amato may well be right in believing that the poor need more lawyers, although her own evidence is relatively weak, focusing on a few unrepresentative rural jurisdictions. Moreover, the poor might well choose to take the money by which the state subsidizes lawyers and spend it instead for other goods and services that would more greatly improve their lives. But, whatever the need, Amato’s proposals are the wrong way to solve the problem. We should deregulate the legal profession to lower its costs, rather than subsidize it.
The cost of most law schools is far too high, but forgiving student debt will just encourage law schools to charge more. Instead, we need to create a variety of lower cost platforms for legal education. I have suggested an undergraduate option and the University of Arizona has initiated such a program.
Ilya Somin discusses at Liberty Law Talk his book The Grasping Hand: Kelo v. City of New London & the Limits of Eminent Domain. The book provides in part a fascinating account of the plight of the New London homeowners who challenged their city's attempt to seize through eminent domain their homes for use in private development. In addition, Somin gives us a serious study of the eminent domain power, and he discusses why we need to reclaim a more restricted understanding of its legitimate use as opposed to the private to private takings blessed by the Court in Kelo and…
In the vast majority of governing charters around the world, you will read the word “dignity”—but you won’t see it in the American Constitution. The traditional lodestars of American rights jurisprudence have been liberty and equality, as enshrined in the Bill of Rights and the Fourteenth Amendment’s equal protection and due process clauses. But of late, dignity has had something of a renaissance. Writing for the Court in United States v. Windsor (2013), Justice Anthony Kennedy concluded,
The history of DOMA’s enactment and its own text demonstrate that interference with the equal dignity of same-sex marriages, a dignity conferred by the States in the exercise of their sovereign power, was more than an incidental effect of the federal statute. It was its essence.
Samuel Johnson famously said: “That man is little to be envied whose patriotism would not gain force upon the plain of Marathon, or whose piety would not grow warmer among the ruins of Iona.” Last week I thus went to Salisbury Cathedral, which contains one of the four original copies of the Magna Carta. The timing for stirring appropriate emotion too was auspicious. Today is the eight hundredth anniversary of the document’s signing.
Unfortunately, the contemporary setting made enthusiasm for the Magna Carta’s contribution to liberty and the rule of law harder to sustain. Instead of focusing on its history or specific elements of its reception into the English legal system, the Cathedral chose to open its exhibit with a video that portrayed various social movements whose connections with Magna Carta were sometimes obscure. One was absurd: an attack on Israel’s blockade of Gaza. One does not even need to agree with this policy to recognize that empowering Hamas, a theocratic and lawless group that regularly engages in summary executions of people unlikely enough to be under its thumb, hardly advances any ideals of liberty or legality. The video showed more about the ineffectual left-liberalism of today’s Church of England than anything useful about Magna Carta.
In the New York Times today, Tom Ginsburg provided some reasons that whatever the surrounding exhibit, a visitor should not get too excited about Magna Carta.
I have started a series of posts on the departmentalism – judicial supremacy debate in an effort to explain my position, which inclines towards, but does not go all the way towards judicial supremacy. But I am going to interrupt that planned series to briefly respond to a post written by my former Yale Law School classmate and OLC colleague Mike Paulsen. Mike sets up a “horrible hypothetical” – one that involves a horrible situation – involving an awful law that prohibits speech that the First Amendment protects, punishes its violation with torture that violates the Eighth Amendment, and unconstitutionally prohibits the President from pardoning the persons convicted. (It also violates other clauses as well.) The Supreme Court then upholds the constitutionality of the law as to an individual. Mike asks, among other things, whether the President is constitutionally obligated to enforce the law.
Legally, the answer would seem to be clear. The courts, with Supreme Court review, have issued a judgment that requires the torturous punishment and prohibits pardons. But Mike’s horrible hypothetical appears designed to make us resist this conclusion – it is just such a horrible decision and outcome! But there are several reasons that allow us to easily avoid the pull of this hypothetical.
Senator Rand Paul’s crusade against the NSA’s Section 215 metadata program, now successful, has made him an icon to libertarians and anathema to securitarians. He isn’t fully either, for his rhetoric—like that of his adversaries—is incomplete. This battle between libertarians and security hawks needs resolution by Burkeans, who can add a needed dose of prudential balance to the debate.
John Paulson’s contribution of 400 million dollars to the Harvard Engineering Department has been greeted with a chorus of criticism, mostly from the left. The complaint is that he should have given the money to the poor instead. Malcolm Gladwell’s tweet is representative: “It came down to helping the poor or giving the world’s richest university $400 mil it doesn’t need. Wise choice John!”
If I had 400 million to contribute, I might well have directed elsewhere myself. But Paulson’s contribution is a sensible idea. The anger from the left reflects its inability to understand that in the long run technology allied to markets is likely to help the poor more than direct aid.
Engineering departments are the locus of modern alchemy where basic science is turned into the technology that produces gold in the modern world.
Future students of our age may well treat Friedrich Hayek’s The Road to Serfdom and James R. Otteson’s The End of Socialism as bookends on an era. Hayek raises the specter of state collectivism in his classic work from 1944. In this new book, Otteson charts socialism’s end, in both senses of that word: the goals it fails to realize as well as its inevitable collapse.