Mike Rappaport Website

Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review.  His book, Originalism and the Good Constitution, which is co-authored with John McGinnis, was published by the Harvard University Press in 2013.  Professor Rappaport is a graduate of the Yale Law School, where he received a JD and a DCL (Law and Political Theory).

The Old and the New: An Empy Restaurant and Yelp

The other day I was confronted by competing social signals: one old and one new.  I was visiting Santa Barbara with my family and, due to a comedy of errors, we ended up not having found a restuant at dinner time.  Needing to find one quickly, we looked on Yelp and discovered a four star restaurant, with a significant number of reviews, nearby. When we drove up to the restaurant, however, we questioned our choice.  It was 7:30 on a Friday night, but the restaurant was completely empty.  No one was inside, except for the staff.  That did not seem like…

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Should Congress Adopt a New Independent Counsel Statute? The Policy Issues

Having addressed the constitutional issues, I now turn to the policy issues  Would it be a good idea to have a new IC statute?  This is a complicated issue and not one I have fully made my mind up about.  But if Congress were to enact a new IC statute, I believe there is a reform that would significantly improve its operation as compared to the old statute.

The biggest problem with the old IC statute is the incentives it gave to the IC.  If one is appointed to be an IC, there is a sense in which one is only successful if one hauls in a big fish – if one prosecutes and convicts someone for a significant crime.  Moreover, the IC has only one task – to investigate a single target – in contrast to a normal prosecutor who has many other possible prosecutions to investigate.  Consequently, the IC has more time and resources to devote to the one target.  These considerations provide the IC with an excessive incentive to prosecute the person they are investigating.

There is a way to address this problem.  There should be two ICs that undertake the task of investigating and prosecuting an official.  The first IC’s job should be to investigate.  At the conclusion of his investigation, he should issue a report which makes the following determinations: (1) whether there were any violations of federal law, and if so, (2) whether based on normal standards of prosecutorial discretion, those violations should be prosecuted.  If the prosecutor concludes that violations should be prosecuted under (2), then he refers these violations to the second IC, who can only prosecute these violations.

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Should Congress Adopt a New Independent Counsel Statute?  The Constitutional Issues

One of the principal concerns about the Obama Administration are the scandals and the claims that it is violating the law.  And sadly the congressional investigation process does not seem to be adequately doing its job.  Thus, it is worthwhile thinking about alternative institutions.

The principal method used back in the 80s and 90s was the independent counsel (IC). Unfortunately, the independent counsel was both unconstitutional (for the reasons discussed in Justice Scalia’s dissent in Morrison v. Olson) and subject to serious problems. But while the original IC statute had these problems, that does not preclude employing a reformed IC to investigate the executive branch.

Let’s start with the unconstitutionality of the original IC. Under the old regime, the IC was not subject to the direction of the President and therefore in my view was unconstitutional. In addition, the IC was appointed by a court on the ground that he was an inferior officer, even though he was clearly in my view a principal officer who could be appointed only by the President with the advice and consent of the Senate.

Both of these problems are rectifiable. First, the IC could be made formally subject to the direction of the President. The statute might provide that the IC is subject to the direction of and removal by the President, but that the Congress believes that presidential direction of the IC would be problematic as a policy matter and requests that the President not direct the IC. The statute might also require the IC to disclose to the public if the President gave him a direction and to keep notes of what the direction was. It is likely under this arrangement that the President would not give any orders to the IC, because he would pay a significant political price for doing so.

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Reinvigorating the Nondelegation Doctrine through the Constitutional Amendment Process

One of the ways that small government and democratic accountability could be promoted in the modern world is through the reinvigoration of the nondelegation doctrine.  Under that doctrine, administrative agencies would be prohibited from making discretionary legislative decisions and therefore Congress would have to do so.  If Congress, rather than administrative agencies, were to make the discretionary legislative decisions, this would both reduce the number of regulations that were enacted and would ensure that members of Congress would have to be responsible for their decisions.  By contrast, under the current system of delegation, the administrative agencies can use the efficiency of the administrative process to pass large numbers of regulations and members of Congress can avoid accountability for these regulations, always claiming that they did not intend any particular regulation which might turn out to be unpopular or controversial.

One common argument against reinvigorating the nondelegation doctrine is that it is not possible in the modern world.  Congress has neither the expertise nor the time to enact all of these regulations.  But this is not actually a good argument.  There is a method that would allow Congress to make these decisions, even assuming that it does not have the expertise or time to do so.

Under a well known proposal, all substantial regulations would have to receive the approval of Congress to become law.  The adminstrative agency would propose the regulation in much the same way it does now.  Thus, it would reflect the agency’s expertise as well as the efficiency and speed of the administrative process.  But the regulation would not go into effect unless it was approved by the Congress. 

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The Reclining Controversy

When I first heard about the “Knee Defender,” I was really outraged.  The idea that a person could prevent you from reclining your airline seat with a device seemed ridiculous.  It was a clearly a part of the design of the seat to recline.  I had always assumed you have both a right to recline and that no one should be able to do anything about.  I should add that I find it extremely uncomfortable to sit on a plane without reclining.  In fact, I have hard time not reclining when you are forbidden to do so during take off and landing.

If everyone just reclines, what is the problem?  Nobody’s knees will be hurt because everyone will have the same amount of room.  What don’t these people get?

Yet, it appears that a sizeable number of people do not see it my way.  They think it is rude to recline your seat.  In fact, this survey indicates that 41 percent of people believe this.  I found this hard to believe, but there it is.

These numbers have forced me to come up with an explanation.  I now believe I understand what is going on.  Yes, if everyone reclines, then everyone will have “adequate” space.  But apparently not everyone reclines.  In fact, the number of people who don’t recline appears to be similar to the number who regard it as rude to recline.  According to the survey, twenty percent of people do not ever recline and 30 percent only do so once in a while.  If one takes two thirds of the people who only recline once in a while, on the ground that not all people who occasionally recline will regard it as rude to recline, and add it to the 20 percent who never recline, we are pretty much at the 41 percent figure of those who believe it is rude.

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Hayek on the Rechtsstaat

Michael Greve has a great post on the German origins of progressive Administration Law in the United States. Michael notes that the German tradition was not all bad – instead there was a liberal and legal tradition of judicial review in Germany, which did not employ deference. The progressives borrowed most of the bad stuff.

This German idea of the Rechtsstaat – of a state or of government bound by the rule of law – was one that was celebrated by Austrian scholar Friedrich Hayek. Hayek, while known as a Nobel Prize winning economist and a political theorist, also studied law in Vienna where he imbibed the ideal of the Rechtsstaat.

In The Constitution of Liberty, Hayek devotes a portion of the book to the development of a law of liberty. Hayek’s approach is to discuss various countries’ distinctive contributions, from England to the United States to Germany. Hayek argues that the movement for liberty reached Germany last and therefore its contribution was in many ways the most developed and the one that best fits the modern world. 

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The Constitution and Omega Glory

Recently, Bryan Caplan put up a Facebook post by “political scientist and game designer Chris McGlothlin” on the Star Trek episode Omega Glory.  That is the one where Kirk goes to a planet and instructs the Yangs about their document, “The Constitution of the United States.”  The Yangs – through centuries of decline – cannot even read the document properly and do not understand its meaning.  Kirk corrects them.  For many originalists, Omega Glory is a metaphorical tale of how the Supreme Court and the modern legal culture have misunderstood the Constitution.

McGlothlin doesn’t seem to like the episode, but to my mind his post makes one mistake after another.  First, he writes that “we never see a copy of the Bill of Rights in the bundle of aged parchments Kirk leaves them. . . . Without the Amendments, those Kohms are goners.

I am not sure what this point is supposed to mean.  The Bill of Rights is part of the Constitution, so what is the problem?  Moreover, the Bill of Rights is important, but these amendments are hardly the only important ones.  The original Bill applied only to the federal government.  If one wants additional protections against the states, one has to look to the 14th Amendment.  And one must look there (and elsewhere) for equality limitations.  The unamended Constitution was a great start, but one of the best things about the Constitution is that it provided for amendments, which continued to improve the document.

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Another Government Failure

One of the central issues for small government people, such as classical liberals, libertarians, and many conservatives, is government failure.  While the standard arguments for big government purport to identify market failures that justify government intervention, small government people emphasize government failure.  For small government people, the government regularly engages in activities that constitute government failure.  The government program does bad things, causing harmful results or producing beneficial results, but at excessive costs.

Ordinary Democratic voters and many Republican voters see government agencies as basically doing a good job.  When they see the FDA, many people simply picture an agency that protects us from unsafe and ineffective drugs.  Many other people, while more skeptical, still see the FDA as basically doing good, even if at times it makes mistakes or pursues inappropriate policies.  It is the rare person who sees the FDA as fundamentally misconceived, as requiring a radical restructuring where it has far less coercive power and is much more of a certifier than a regulator.  

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The Drafters and the Ratifiers

It is sometimes said that the ratifiers of the Constitution should count more in determining its original meaning than the drafters.  I am not so sure. To begin with, this distinguishing between the drafters and the ratifiers appears to turn on an original intent (versus an original public meaning) understanding of originalism.  Under an original public meaning apprach, it is the meaning that a reasonable and knowledgeable person would give to the Constitution.  And that meaning is no more likely to be that of the ratifiers than the drafters. But some people favor the original intent approach.  Yet, even under this approach,…

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Patrick Allitt

I was pleasantly surprised to see this new podcast with Patrick Allitt.  I know Professor Allitt’s work from his lectures for the Great Courses (previously known as the Teaching Company). I have listened to three of his courses, all of which I greatly recommend.  The first course I listened to by Professor Allitt was his Victorian Britain.  Both my wife and I loved this course, and we still laugh at Allitt’s impersonation of Queen Victoria.  Great fun and highly recommended. The second course I enjoyed was History of the United States (2nd edition).  Allitt is joined here by two other excellent lecturers…

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