A Government Distracted from its Core Functions Loses Trust

The Senate Judiciary Committee held a hearing on free speech on campus last week. During the question and answer period Senator Diane Feinstein complained that public universities, like Berkeley, could not be expected to assure that unpopular speakers were heard on campus. They simply did not have the resources to protect them.  One witness, Eugene Volokh, the UCLA law professor, pushed back,  lucidly arguing that universities must protect unpopular speakers, because permitting agitators to prevent speech gives them a heckler’s veto.

Feinstein’s question points up one of the greatest problems of governance today. Our public institutions often do not deploy the resources to protect their core mission, because money is wasted instead on matters that are outside that mission and indeed undermine it. The University of California is a perfect example.  As Heather Mac Donald has noted, the university keeps spending millions of dollars to hire bureaucrats devoted to various aspects of  diversity. Yet these kind of bureaucrats frequently poison the atmosphere for free and open debate on campus. And dispensing with them would pay for more security that could protect Berkeley’s core mission of free inquiry.

Maintaining law and order is the government’s most essential function.

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We Have Nothing to Fear but Hope Itself

Occupied Wall Street, Time to Bern It Sign

There is a strange dialectic at work in Western society, or so it seems to me, between political apathy on the one hand and political rage on the other. In the recent French elections, for example, the rate of abstentions was the highest ever seen, more than half in the second round of the election of the legislature. But in the first round of the presidential election, the candidates of the extreme Left and extreme Right, both of whom drew their supporters by appealing to subliminal rage, had more votes than the eventual winner, a man previously almost unknown.

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Six Degrees of Jim Buchanan

It is a dicey business for scholars housed at academic institutions to embark on projects to influence public opinion and practical politics. That is one of the relentless premises of Nancy MacLean’s Democracy in Chains: The Deep History of the Radical Right’s Stealth Plan for America, a scurrilous attack on James M. Buchanan that is written as a screed, published with a popular press, and suffused on every page with an obvious intent to influence public opinion and practical politics.

MacLean, the William H. Chafe Professor of History and Public Policy at Duke University, might better have entitled the work, which is pervaded with innuendo and guilt by association, Six Degrees of Jim Buchanan. His constitutional focus on veto points is similar to John C. Calhoun’s; Buchanan is therefore tarred by association with Calhoun’s racial views. Buchanan came to prominence in Virginia when the state was under the thumb of the segregationist U.S. Senator Harry Byrd. Byrd’s beliefs on voter suppression are unfurled in tandem with Buchanan’s story, inviting the reader to infer a phantom link between them. Likewise the implied association of Buchanan with the full range of the Virginia journalist James J. Kilpatrick’s views.

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Why Trinity Lutheran is the Most Important Case of the 2016 Term

Courthouse Building

Trinity Lutheran v. Comer was the most important case of this Supreme Court term both because of its effects on educational policy and on the future character of the American polity.  There a six-member Court majority held that Missouri could not prevent a church from competing for public funds for rubber mats to make its preschool playground safer for children.   The Court held that the government cannot withhold funds for an essentially secular project simply because the potential recipient is engaged in religious exercise. As I previously suggested it would, this case extended to free exercise rights the doctrine of unconstitutional conditions previously applied to other constitutional rights.

As the Chief Justice Roberts noted, the only practical result of the denial in this particular case would have been “in all likelihood, a few extra scraped knees.” Nevertheless, the future consequences of this holding are likely very substantial. There are 37 states that have restrictions on state aid to institutions which are engaged in religious exercise.  State Supreme Courts have often interpreted these prohibitions to prohibit school voucher programs and other forms of assistance for education by religious institutions.

But this case will sweep many of these decisions away.

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Another Wrongful Conviction Case

There has been another exoneration of two wrongly convicted people.  I have blogged about these travesties of justice in the past.  Such wrongful convictions are just so very sad.  Innocent people lose decades of their lives and are treated as horrible wrongdoers by society.  The compensation they receive, when they receive it, is woefully inadequate. This conviction is a familiar one in several ways.  First, the subject of this prosecution – claims of child abuse against child care workers for extreme behavior supported only by wild testimony of a child after significant opportunity for her story to expand – was part…

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Ending the Fed’s Permanent Inflation Policy


The Federal Reserve Board seeks to maintain an inflation rate around two percent per year. While this rate might sound low for older types who remember double-digit inflation rates in the late 70s and early 80s, and a rate of 5.4 percent as recently as 1990, why tolerate, let alone seek to sustain, any inflation at all? Why not seek to establish zero inflation and stable prices? After all, even an inflation rate of only two percent a year means nominal prices still double every 36 years. And while people can and do broadly adjust their behavior in the face of anticipated inflation, it’s not a seamless process. Inflation distorts people’s economic decisions, whether as producers or consumers, labor or capital, and so imposes costs on us all.

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On the Road


Every year in early May, tens of thousands of people gather in Ocean City, Maryland, for Cruisin’ Ocean City, a weekend dedicated to vintage cars. For four days, Coastal Highway is jammed with classic Camaros, souped-up Corvettes, 1940s Fords, and thousands of other bold, gleaming cars. The cheering, drinking, peel-outs, and general revelry have gotten so ecstatic and voluble that there’s talk of moving the event to earlier in the year, when fewer partiers would be able to attend.

Looking through Automobile Design Graphics: A Visual History from the Golden Age to the Gas Crisis, a recent coffeetable volume published by Taschen, it becomes evident why Americans, and particularly American men, love vintage cars. On the one hand we have the nostalgia factor, a yearning for a time when U.S. manufacturing turned out quality goods at a good price, gas was cheap, and political correctness and environmental hysteria had not quashed the fun of going cruising in a sporty car.

In a larger sense, these cars resemble a kind of timeless artistry—bold archetypes that transcend a particular place and point to the power of beauty.

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The American Bar Association Stifles Legal Education


The Accrediting Council on Education in Journalism and Mass Communications is a nonprofit accrediting agency for journalism programs. Bradley Hamm, the dean at Northwestern’s Medill School of Journalism, has called the council’s accreditation-review process “flawed,” “superficial,” “extremely time-consuming,” and “sort of a low bar.”

So he’s gotten out. Northwestern University has effectively terminated its relationship with the council, calmly embracing its new status as unaccredited.

The online journal Inside Higher Ed, which points out that the Graduate School of Journalism at the University of California, Berkeley, has done the same, quotes Dean Hamm as saying that, “as we near the 2020s, we expect far better than a 1990s-era accreditation organization that resists change—especially as education and careers in our field evolve rapidly.”

This is a tremendous blow—when two of the most prominent and celebrated journalism programs in the country refuse to acknowledge the authority and legitimacy of an accreditor, it’s tough for the accreditor to argue that the resistant institutions are merely upset about their ability to maintain accreditation. If other journalism schools are frustrated with the council’s obsolete standards, and its tendency to micromanage curricula, more of them will likely follow the example of Northwestern and Berkeley.

The social and financial costs of burdensome accreditation standards and procedures are even more pronounced in the field of law. Small businesses and Americans of modest income struggle to afford the high costs of hiring an attorney or litigating a case. Access to justice or quality representation is a constant concern within the legal profession.

Meanwhile, the American Bar Association, which remains the only accrediting body for law schools in the United States, regulates legal education in a way that drives up costs for law students, and for the consumers onto whom those costs are eventually projected.

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The New Left’s Dangerous Old Antitrust Ideas

whole foods 1

The course of antitrust law in American history has proved a barometer of good governance.  In the New Deal, the Roosevelt administration lurched from one policy to another, united only by the injury they did to the economy.  Sometimes that administration broke up companies simply on account of size and at other times permitted actual collusion by competitors on prices.  In the Warren Court era, both the Department of Justice and the Court itself prevented mergers, even though they were economically beneficial. In Brown Shoe, the nadir of all antitrust law, Chief Justice Earl Warren invalidated a merger between two relatively small shoe companies in an extremely competitive market because he concluded that it might become part of a merger trend and because it would make the companies more efficient at selling shoes!

In contrast, since the Chicago School revolution in antitrust was empowered by the Reagan administration and sustained by its successors, antitrust law has become quite sensible. It has intervened only when needed to protect the welfare of consumers, preventing collusion or mergers that would likely keep prices higher than in a free market. The consumer welfare standard of modern antitrust has also offered relatively clear rules of conduct derived from microeconomics, thus protecting the rule of law and curbing government discretion over business.

But ideas percolating on the left threaten this sound consensus and an oped in the New York Times yesterday exemplifies the danger. Lina Khan, who was the policy director for Zephyr Teachout, the radical Democratic candidate for New York Governor in 2014, complained about Amazon’s recent purchase of Whole Foods.

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Living Constitutionalism on the Supreme Court’s Website

Six years ago, I wrote a post about how the Supreme Court’s website adopted the language of the Living Constitution approach.  (I had been expanding on a post by Eugene Volokh.)  It was curious that Justices Scalia and Thomas, as well as other fellow travellers of originalism, including the Chief Justice, would allow this language to continue.   At the end of the post, I wrote that “it will be interesting to see whether this is changed and if so, how long it will take.”  I just checked back to see whether there had been a change, but none has occurred. …

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