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.

We Grow More Equal as Technology Dematerializes the World

At this year’s Federalist Society student symposium Richard Epstein and I spoke on a panel on Innovation and Inequality.  We agreed that the innovation created by capitalism has hugely benefited the poorest in society.  We disagreed over the extent to which the very nature of modern innovation itself has a tempering effect on inequality.

In my view, modern innovation helps reduce real inequality both around the globe and in the United States. And it does so for fundamental reasons. Information technology creates value by better arranging material resources.  And because of the nature of our accelerating technology the know-how for such information technology rapidly becomes common property benefiting everyone.

Another way of putting this point is that modern information technology dematerializes the world and thus democratizes it, because it is material things that are scarce. The move from its to bits is also a move to equality, because bits can be enjoyed by the many simultaneously. Income inequality gives a misleading picture because we all enjoy the benefits of a growing pool of expressions of ideas.

Let me give some concrete examples. Watson, the machine that beat the best players at Jeopardy, is going into medical diagnostics.

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Burke, Historical Experience, and Change

At the Federalist Society national student symposium, my colleague Josh Kleinfeld was the deserving recipient of the Paul Bator Award given to an outstanding law professor under 40. His beautiful acceptance speech focused on the importance of Burkean conservativism.  And Kleinfeld is correct: the right owes an enduring debt to Burke’s skepticism of ordering society according to the abstractions of the kind advocated by the French philosophes. That debt is all the greater, now that these types of philosophes have gone global.

But I do wonder whether one aspect of Burkean conservatism—deference to past historical experience—deserves quite as much weight today as it once did.  Burke had both religious and more instrumental reasons for valuing that experience. For Burke, history was “the known march of the ordinary providence of God.” More secularly, it was also the best repository of human prudence and wisdom and thus the best guide to policy in an uncertain world.

But the value of historical experience as a guide for policy depends on the technological and social rate of change and on the availability of alternative methods of sifting experience.

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Share–and Care–Alike

In the sharing economy, companies like Uber, Lyft, and Airbnb, add value by using resources that would otherwise be idle.  The Internet connects people who need transportation or accommodations with people who are willing to provide them. Another substantial advantage is that these same connections permit social norms rather than government regulation to enforce standards of good conduct.

Government has a model for regulating taxis. It generally requires substantial licensing and enforces rules by tracking complaints and disciplining drivers found in violation. But a company like Uber makes much of this regulation unnecessary. First, given its substantial capital investment, it has every interest in checking out drivers itself before it permits them to represent its good name.

But Uber also makes use of social media to assure continuing good behavior of its drivers.

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James Buckley at 90: Still a Hero of the Republic

I had the good fortune to be asked to review Saving Congress from Itself by James L. Buckley, a statesman I have long admired.  As I say in the opening of the review that appears in this week’s print edition of National Review: My first vote remains my best. It was for James L. Buckley’s reelection as a United States senator from New York. In six years in office, he had shown himself fearlessly principled, whether in calling for Nixon’s resignation in the Watergate scandal before any other conservative in Congress or in opposing a taxpayer bailout for New York City,…

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Law Schools Must Respond to Technological Change

My last post suggested that the decline in law students was due in large part to a technological shock that has decreased demand for lawyers, at least at the price point law schools are producing them. Law schools need to respond. They must shape a curriculum that will prepare their students for the world of growing machine intelligence that was responsible for the shock.  They also need to generate income from other programs to replace the law students who will not be returning.

In the coming age of law and computation lawyers will do better in fast-changing and high value areas. Machine intelligence succeeds through pattern recognition; in narrow, fast-changing areas, it has less data and thus fewer opportunities to identify promising correlations. In such areas, lawyers will have room to craft intuitively appealing arguments to regulators and courts. And when the transaction are of high value, even if machines are helpful in generating documents and precedent, human creativity will continue to add value.

Regulatory areas, particularly financial ones, are appropriate areas for more courses.

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Will Law School Applicants Return?

law school apps

Law schools have suffered a precipitous drop in applications in the last six years—the largest decline in decades. To assess whether this decline will continue and to determine the response, legal educators must first figure out the causes of the decline. Here are the three most plausible causes in ascending order of the threat that they pose to incumbents in legal education. The first is the Great Recession: law schools have declined because of a decrease in the demand for legal services caused by the Great Recession. The second is the existence of a lawyer bubble: law schools previously produced too many lawyers and there is overhang of supply that makes new lawyers less necessary. The third is structural: law has faced a technological shock, which has depressed the demand for lawyers and/or their income.

It seems quite clear now that Great Recession cannot be assigned a primary role.

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The Battle for Open Skies

An article in the New York Times this week described how domestic airlines are conspiring with their unions to weaken open skies agreements. These agreements permit American and foreign carriers access to one another’s markets on a reciprocal basis. They empower airlines to decide where and how often to fly internationally, based on market conditions, not national quotas or other irrelevant considerations. The result are good for airline passengers. Fares become lower, and more international flights go from more cities in the United States to more cities abroad.

The most troubling aspect of the article was that the Secretary of Commerce, Penny Pritzker, and the Secretary of Commerce, Anthony Foxx, were entertaining the American airlines’ and unions’ request for restrictions on the entry of new foreign airlines into the American market. Their complaint is that deep pocketed airlines from the Middle Eastern countries, like the United Arab Emirates, were engaging in “unfair” competition and thus their flight plans needed to be blocked.

These Secretaries should have directed the airlines and their unions to take their complaints to the Justice Department, because competition laws are the best way to assess whether the foreign airlines are acting anti-competitively.

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The Passive Aggressive Vices


Yesterday the Supreme Court refused to stay the lower court decision requiring recognition of same-sex marriages in Alabama. Commentators have already suggested that this refusal shows that it will decide in favor of the right when it hears and decides the case later this term.

In my view, the more interesting lens through which to view the order is the Supreme Court’s strategic manipulation of judicial process to give momentum to same-sex marriage. This momentum helps make its ultimate decision seem like a fait accompli and thus less likely to cause political backlash.  The first step in this strategy was Justice Kennedy’s opinion in United States v. Windsor  that had a strategic ambiguity as a matter of doctrine: whether its holding on the constitutionality of the Defense of Marriage Act (DOMA) was based on federalism or substantive rights was unclear. But the opinion did convey the clear implication that the decision to have a single federal rule on the issue was driven by animus against homosexuals. These statements made lower court judges fearful of seeming like bigots, if they rule against constitutional challenges to state laws.

When these courts ruled in favor of the challenges, after a time the Court began to refuse to stay their decisions or accept petitions from the states to overturn them.  These lower court decisions then created more facts on the ground and yet more momentum for a Supreme Court decision in favor of same sex marriage on the merits.

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Judges are Less Extreme than Lawyers (and That’s a Good Thing)


wooden gavel and books

A new study shows that American judges, particularly federal judges, are more conservative than the average lawyer. It contains a lot of interesting information, but its normative conclusion–that this disparity shows “politicization” in the judiciary– is wrong-headed.  Indeed, that claim likely shows more about the politicization of the academia than anything about the judiciary.

The study seems well designed. It uses campaign contributions as a proxy for the political affiliations of lawyers. In this respect, as the authors recognize, it follows a 2004 article of mine, which showed that law faculty at elite law schools contributed to Democrats over Republicans by a margin of about 11-2. And this new study reveals interesting information, as  most easily visualized in this hyperlinked chart. Lawyers are by and large liberal. As one would expect, legal academics and public defenders are more liberal than partners at top law firms, but these partners are liberal as well.  Lawyers from T-14 law schools are more liberal than those from lower ranked schools.  Female lawyers are more liberal than male lawyers. Federal judges are less liberal than lawyers as a whole and federal appellate judges break slightly to the right.

So far, so good. But then the study makes the claim that this difference represents the “politicization” of the judiciary.

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The Mismeasure of Our Economy

GDPIt is hard to believe that a book about the Gross Domestic Product could be interesting, important and occasionally amusing, but Diane Coyle has succeeded in all of this with GDP: A Brief but Affectionate History. It has two very salient takeaways for politics, one practical and one philosophical. First, GDP has become less and less good at capturing positive changes in human welfare. As a result, the lower growth in GDP in the last few decades is less troubling than it is often made out to be.  Second, GDP is a measurement of the government that has inherent biases that one might expect from a metric devised by the government.  Classical liberals should thus be careful to separate their respect for market freedom from any worship at the altar of GDP.

Coyle shows that GDP was designed for a  time when most of the economy consisted of the production of materials, not intellectual property or services. Indeed, because it was formulated at the time that government came to seen as responsible for the economy, its underlying image is that of a machine.  Put so much capital and labor into the economy and get out such much output of goods.

But of course today much of the economy does not lie in the production of material goods.

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