John O. McGinnis

John O. McGinnis is the George C. Dix Professor in Constitutional Law at Northwestern University. His recent book, Accelerating Democracy was published by Princeton University Press in 2012. McGinnis is also the co-author with Mike Rappaport of Originalism and the Good Constitution published by Harvard University Press in 2013 . He is a graduate of Harvard College, Balliol College, Oxford, and Harvard Law School. He has published in leading law reviews, including the Harvard, Chicago, and Stanford Law Reviews and the Yale Law Journal, and in journals of opinion, including National Affairs and National Review.

American Capitalism Created the Computational Revolution

innovators-9781476708690_lgWalter Isaacson is one of our greatest biographers. He has written three superb portraits of men who in large measure defined their age—Benjamin Franklin, Albert Einstein and Steve Jobs. Isaacson has both the empathy and knowledge to make subjects as varied as a universal sage, a scientific genius, and an entrepreneurial visionary come to life. He has now written The Innovators, a group sketch of people who have created our world of ubiquitous computation.

It is a finely etched and exciting picture. We learn that Ada Lovelace, Byron’s daughter, was the first to understand that computational machines could do any logical operation with the right instructions: she is the grandmother of software. And William Shockley was so paranoid that, even after winning the Nobel prize, he obsessed over who on the Nobel committee might have tried to prevent him from getting it. Isaacson also skillfully weaves important themes through the book, such as the ability of many innovators to do, in the words of the Countess Lovelace, “poetic science,” combining aesthetic sensibility with analytic acumen to create new products.

Unfortunately, in his explanations of what drives progress in technology and innovation, Isaacson slights the role of markets and of America.

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Let Corporations Shift Fees in Shareholder Suits

In Sunday’s New York Times, Gretchen Morgenson bemoans the Delaware Supreme Court’s recent decision permitting corporations to adopt bylaws that shift the costs of unsuccessful shareholder litigation to those who bring the suit. Such rules allow a corporation that prevails in a shareholder suit against corporate malfeasance to collect attorneys’ fees.  She quotes only experts who share her views that Delaware law should be amended to prevent such fee shifting provisions.

But my initial review of the issue suggests that it would be a mistake to immediately prohibit such bylaws.  Substantial agency problems arise between the class action lawyers who typically bring such shareholder suits and the shareholders who are supposed to benefit.

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Hong Kong, Democracy, and Constitutionalism

The Chief Executive of Hong Kong recently lamented that permitting democratic elections there would permit too many relatively poor people to vote. He fears that this group – comprised of those earning less than $1,800 per month, in his view – could vote themselves excessive benefits and endanger Hong Kong’s prosperity.

The irony is delicious – the Chief Executive, vetted for his position by the Communist Party of China, opposes democracy because it empowers the poor. May the communist slogans in China rest in peace!

But does the Chief Executive have a point, at least in the Hong Kong context?

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Same-Sex Marriage, the Political Process and Judicial Manipulation

There is a new meme circulating among journalists about the Supreme Court’s decision not to take certiorari in the same sex-marriage cases. According to the left-liberal Jeffrey Toobin, the Court’s decisions allow the “political process to go forward, one state at a time.” Or as David Brooks, a moderate conservative, said at greater length: “Sometimes, you just let the country have its way, and you don’t try to determine the shape of the country. You sort of modestly step back and let the country figure out what it believes. And I think they’re doing absolutely the right thing in just withdrawing and not getting too involved.”

Whatever one thinks of same-sex marriage (and I favor it as a policy matter), these claims completely distort the truth. The Supreme Court is letting go forward a judicial process that permits courts to invalidate traditional marriage laws if they think such a decision would best reflect the signals the Court itself has previously sent on the subject.  In contrast,  a political process would allow states—principally their legislatures and people—to make decisions about same-sex marriage, one state at a time.

The journalists’ claims are even more disingenuous because of the way the Supreme Court has set the stage for the lower courts.

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Eliminate Missouri Plans for Judicial Selection

It is election season again. And that means it is time for complaining about electoral campaigns against retaining justices who sit on state supreme courts. These campaigns are said to be inconsistent with judicial neutrality because judges are forced to take positions on jurisprudence. Big money is said to buy judicial favoritism.

I am no fan of subjecting judges to elections. In my view, the far superior system is one, like the federal structure,  in which the elected chief executive of the jurisdiction appoints judges for a term of years upon confirmation of a legislative body. But judicial elections are necessary, if the appointments are made according to so-called Missouri plans, an arrangement that permits  lawyers to create a power center of their own in the judiciary.  Indeed, while elections provide some corrective to the democratic deficit of those plans, they are an insufficient corrective, because voters do not  generally focus on judicial elections. The better solution would be trade the end of the judicial elections for the termination of Missouri plans.

The classic Missouri plan works like this:

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The Rise of Machine Intelligence and the Need for Judicial Protection of Occupational Freedom

Occupational freedom is one of the most pressing issues of our time.   The ever greater power of machine intelligence will disrupt more and more industries.  For instance, self-driving vehicles will cause many people  in the transportation industry to lose their jobs.  People in those industries will then look for new positions. But the barriers of occupational licensing have been increasing in the last decades, making it harder to move to new jobs.

The judiciary could be an important force against such irrational restraints on occupational freedom. That is the social background of North Carolina  Board of Dental Examiners v. FTC, a case that was argued before the Supreme Court yesterday.

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The Insights and Fancies of a Billionaire Entrepreneur

Peter Thiel’s new book, Zero to One, is ostensibly a self-help book for those who want to succeed at start-ups.  But any powerful self-help book flows from a philosophy of the world, and Thiel reflects his libertarian and transhumanist impulses.  Zero to One is thus far more interesting and more original than most business books.  But the book is also at times disappointing because, amid arresting insights, it contains overstatements and simplifications. And at the heart of the book is a paradox: Thiel believes that innovation is less than it could be, but he does not offer a convincing explanation of why the market for startups should be failing.

The specific advice to startups is the book’s greatest strength.

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Same-Sex Marriage, Social Movements, and Judicial Aristocrats

It now often said that social movements help generate modern constitutional law. Sometimes the claim is made in defense of living constitutionalism, because, according to many scholars, the influence of social movements shows that living constitutionalism has democratic roots and does not consist of rights simply minted by judges. While it is certainly true that social movements play an important role in living constitutionalism, they do not erase its democratic deficit, let alone assure that new constitutional norms reflect the consensus that the amendment process would provide. One reason for the continuing deficit is that justices write opinions to aid some movements and not others.

A case in point is the movement for same-sex marriage.

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Rules, Standards, and the Era of Computation

The increasing power of computation is the most important force of our age. In Law’s Algorithm, written with Steve Wasick, I apply information theory to demonstrate that greater computational capacity can change the optimal form of law.  Because such increased capacity allows law to be more easily discovered it encourages the use of bottom-up forms of legal ordering, like the common law and standards. These forms of law have advantages in permitting law to evolve as it is applied to new facts and situations. But in comparison to fixed rules they also have disadvantages, because their application is more uncertain.  As legal search and prediction improves through the computation, however, the degree of this disadvantage declines.

Consider a law that requires citizens to drive at a particular speed—a classic rule.

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Eric Holder and the Rule of Law

As Eric Holder leaves office, I want to remind readers of a decision that was a startling breach of legal regularity. It concerned the Attorney General’s core obligation to help the President carry out his constitutional duty “to take care that the laws be faithfully executed.”

The incident arose from a bill that purported to give the District of Columbia voting representation in the House of Representatives. 

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