With this post I bid a very fond farewell to Law and Liberty, its brilliant mastermind Richard Reinsch, and readers and commentators, faithful and occasional, over the past near-five years. I’ll continue to contribute as the spirit and Richard’s impetuous demands may move me. But my more-or-less regular contributions end with this post. That is as it should be, and it comes at the right moment. My engagement here has been like most of my career: wholly fortuitous, and undeservedly rewarding. Richard recruited me for the launch in the hope of giving air to a fresh, heterodox voice in a vibrant…
Any serious checks on the separation of parties and executive government, I’ve argued in my earlier post, would compel us to re-think big pieces of the constitutional and institutional architecture—stuff we haven’t thought about and that’s wholly missing from the GOP’s pedestrian “Better Way” agenda. Herewith some examples of what that might look like. Here’s an option that ABW stumbles toward: under the German Constitution, one-third of the legislature can ask for immediate constitutional review of any piece of legislation. Why? Because Germany doesn’t have a separation of powers that permits one political branch to check the other’s transgression. It’s a…
Yesterday, the Hoover Institution hosted a conference on “A Better Way,” the House Republicans’ agenda to make America perhaps not great again but at least work again. That proved a useful focus for a panel discussion featuring yours truly (video link to come). As for ABW itself, I’m with the Boss: Well my soul checked out missing as I sat listening To the hours and minutes tickin' away Yeah just sittin' around waitin' for my life to begin While it was all just slippin' away The fact is that ABW is dead for the foreseeable future. Mr. Trump has severely compromised, if not single-handedly destroyed,…
Last week, the shorthanded Supreme Court bounced back into action with orders on the pending clutter of cases. Among a slew of cert denials, some grants in mostly tedious cases, a handful of CVSG’s (Call for the views of the Solicitor General), and a gaggle of housekeeping orders, there was a relist in The Gillette Company v. California Franchise Tax Board. The humble Question Presented is whether the Multistate Tax Compact has the status of a contract that binds its signatory States. Gillette and a bunch of other companies say “yes.” California says the Compact was just a good-natured joke, and the California Supreme Court agreed.
Last week I participated in two panel discussions at a Virginia Continuing Legal Education seminar, held at the Washington Library at the General’s Mount Vernon estate (it’s a spectacular place). Technically the panel dealt with Executive Orders but the moderator was John Dean (of Watergate fame—fit as a fiddle after all these years). So naturally the talk turned to impeachments. That got me thinking: arguably, it’s quite likely that the next President or perhaps some other official will be impeached (though not convicted).
The Office for Civil Rights (OCR) periodically sends “Dear Colleague” letters to higher ed leaders, suggesting ways in which their institutions might avoid running afoul of made-up civil rights requirements. Said leaders (presidents, provosts, etc) periodically send “Dear Faculty Colleague” letters, not to intimidate but to—actually, I don’t know what. I’ve cobbled together a letter from missives you can find on the internet (so it’s ferreal; only PCU is made up):
As this post goes up I’m off to Germany, this time for some actual work. In cooperation with the Council on Public Policy (a German think tank run by my buddy Michael Zoeller), the GMU Law & Economics Center runs something called the Transatlantic Law Forum (TLF). We assemble legal scholars, judges, and lawyers from both sides of the pond and the blessed isle in-between to discuss serious, salient questions related to constitutionalism and the rule of law. Our conferences alternate between GMU’s Antonin Scalia Law School and Bucerius Law School in Hamburg (Germany’s only private law school, and therefore far and away the best). Last year’s event at ASLS, on “The Administrative State and its Law,” produced terrific essays that will appear in a forthcoming issue of the George Mason Law Review; I’ll blog them.
Earlier this month Jack Balkin (Yale Law School) and I found ourselves on an APSA/Claremont Panel on “The Legacy of Justice Antonin Scalia,” alongside Hadley Arkes and Ralph Rossum. We couldn’t find anything to disagree about.
I love the Wall Street Journal—the daily diary of American despair. Even if some of the stuff isn’t exactly news, or news of the “I told you so” variety.
The Manhattan Institute’s excellent Steven Malanga reports that states and their hangers-on have tried to cover up the state pension crisis.
Last week, in a case brought by the State of Texas and several other states and state agencies, a U.S. District Court (Judge O’Connor, Northern District, Texas) issued a preliminary injunction against the feds’ rule, or maybe it’s just a suggestion, contained in a “Dear Colleague” letter regarding bathroom, locker room, and shower access for transgendered individuals. Judge O’Connor ordered some further briefing on the appropriate scope of the injunction. The ruling is just one brief episode in the transgender bathroom saga, whose trajectory points to yet another Supreme Court determination on conflicts between the Constitution’s Meaning of Life Clause and the rule of law as we thought we knew it.