Justice Scalia’s Worst Opinions

Justice Scalia testifies on Capitol Hill in Washington

Recently, there has been some discussion, by admirers of Justice Scalia, of what is the Justice’s worst opinion.  Mike Paulsen argues it is Employment Division v. Smith, where Scalia for the Court interpreted the Free Exercise Clause to provide less protection for those who seek religious exemptions from general laws.  Mike Ramsey mentions both Whitman v. American Trucking (expansive view of Congress power to delegate to the executive) and Gonzales v. Raich (expansive view of Congress necessary and proper power) as possibilities.

Scalia’s views on the nondelegation doctrine are potentially important.  While the justices on the right have supported limits on Congress’s commerce power, there has been no similar efforts as to Congress’s power to delegate.  There are several reasons for that but one important reason is that Scalia would not have gone along.

In my view, though, Scalia’s worst opinions are his series of opinions defending the Chevron doctrine.  There is a reasonable argument that if Scalia had not been on the Court, the High Court would never have adopted the broad Chevron doctrine.  The Chevron decision itself, written by Justice Stevens, was probably never meant to have adopted the broad rule of deference that it has become.  Instead of adopting a categorical rule that required deference to agencies for both pure questions of law and mixed questions of law and fact, it was probably intended merely to hold that the particular statute at issue in that case – the Clean Air Act – allowed the executive deference as to the particular type of decision in that case.

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Legal Education Better Call Saul  

Breaking Bad (Season 4)

This site features an excellent Liberty Forum discussion this month on the future of legal education. If Ken Randall is right about a “blue ocean for law schools” (and he probably is), it looks like a lot of them will be traveling online, providing a needed service for those who only want a ticket to take the bar. As the profession gets more entrepreneurial, the argument for taking this route gets stronger.

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The Death of Moore’s Law Will Not Kill off Computational Disruption

Exponential increases in computational power generate most of the rapid social change in our time. Some of the changes are largely good. The increase in amount and speed of information promotes the availability of more diverse and expert views on policy and politics. The rise of genomics and personalized medicine can lead to longer and  healthier lives. Even energy production, both of fossil fuels and the greener variety, is boosted by computational power. But computation is also the cause of domestic turbulence, as automation replaces some kinds of jobs, and of danger abroad, as it empowers the organization of non-state terrorist actors.

Moore’s law is thought to encapsulate ongoing computational improvements.  This law, named after Gordon Moore, one of the founders of Intel, is in a reality a prediction of a regularity, i.e. that the number of transistors that can be fitted onto a silicon computer chip doubles every eighteen months to two years.  This week Moore’s law reached  the age of fifty and there are widespread predictions and fears that it will die before sixty, because of the physical impossibility of shrinking transistors further and the expense of  trying to do so.

But the computational revolution has deeper and broader roots than Moore’s law and thus the rate of computational and social change will continue even after its demise and may indeed accelerate.   

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Sacred Rhetoric and Political Discourse

winthropMy previous posts for Law and Liberty examining Abraham Lincoln’s use of the Bible in the Gettysburg and Second Inaugural addresses generated interest that far exceeded my expectations (and those of the editor). These were primarily descriptive rather than critical assessments of the propriety of Lincoln’s references or allusions to Scripture in these celebrated orations. Space constraints did not allow me to explore other issues of interest to me, such as the perils of deploying religion in political—often partisan—rhetoric.

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The Adhoc-racy and the Rule of Law in the 2008 Financial Crisis

Paulson, Bernanke, And FDIC Chairman Make Statement On Financial Markets

When surveying the vast wreckage of the 2008 financial crisis, many classical liberals worry that the most profound damage done was to the rule of law in America.  Though it is difficult to pin down the concept with great precision, the core of the rule of law is simple: we have a government of laws, not men.  Our officials must follow rules that have been publicly and clearly set forth in advance rather than acting on their own caprice, and they are not welcome to simply make up rules as they go along and declare their conduct lawful in retrospect.  Without adherence to this precept, government’s actions can have no basis for legitimacy.

If we closely scrutinize what the Treasury Department, Federal Reserve, and other agencies of the federal government did in response to the recent financial crisis, there is no avoiding that they made a mockery of the rule of law.  Indeed, as Lawrence H. White puts it, “The approach of Federal Reserve and Treasury officials during this crisis, unfortunately, has been to consider every possible remedy but applying the rule of law.”

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After Indiana: Harmonizing Gay Rights and Religious Freedom

Indiana freedom

After the furor directed at Indiana for enacting a religious freedom measure, some are asking whether it is possible to hit the reset button in the struggle over religious freedom and gay rights. Others are still scratching their heads: What exactly do these state versions of the 1993 Religious Freedom Restoration Act (RFRA) do? Are they anti-gay? Should people who care about civil rights boycott any state considering them, in order to “take a stand against” RFRA?

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The Philosophy of Governance in Game of Thrones

The HBO television show Game of Thrones, based on the books by George R. R. Martin, has begun its fifth season.  Martin wrote the books in part based on the concern that J. R. R. Tolkien had focused on the war against evil and had neglected the difficulties of governing.  Martin’s books focus on the latter.

I know my Game of Thrones mainly from the television show rather than the books (although I have read the first book).  So it is always possible that my thoughts here might turn out to be inconsistent with later developments in the books.

(Spoiler alert: the following post assumes that you have finished the fourth season of Game of Thrones.  If you have, it is safe to read.)

My view is that Martin believes that desirable governance is something of a golden mean between two extremes.  On the one hand, there is the philosophy of governance of the Starks – Ned and his eldest son, Robb.  Both of these leaders are admirable men in a way – they are mainly honorable and seek to follow moral norms.  Yet disaster befalls both of them.  Ned is killed largely because he does not act strategically or decisively, warning the Queen and allowing her to act against him.  As a result, his family is devastated.

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Nationalize It

In this Liberty Law Talk with James L. Buckley—Judge, Senator, Saint—he proposed to terminate any and all federal transfer programs. That bold program is conceptually and directionally right. Can it be done, though? Answer, maybe—provided that… The raw numbers are prohibitive, and horrifying. Four states (Mississippi, Louisiana, Tennessee, South Dakota) collect over forty percent of their revenues from the feds. Two-thirds of the states depend on federal transfers for over 30 percent of their budgets. Mind you: these are 2012 data. Federal transfers under the ACA’s Medicaid expansion—a dollar-for-dollar reimbursement for whatever any state chooses to spend—will drive the numbers through the roof.…

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The New Architecture of Legal Education

The recent  architectural addition to Northwestern Law School where I teach – a lovely, three-floor, glass-clad space with high ceilings – reflects a new direction of legal education.  The first-floor has a café with fifty seats and a patio looking out on Lake Michigan. The next two floors are conducive to collaboration, consisting of study rooms and open spaces with comfortable chairs.   The only classroom in this section has no rows of seats or even a lectern but is instead full of tables and audiovisual screens, suitable for negotiation and problem solving even at long distance.

The new space emphasizes an increasingly important part of elite education generally—the opportunity to network with other highly skilled individuals. One can think of higher education as providing three distinct services: transferring information and skills,  signaling the quality of students to employers, providing professional networking opportunities for students.

Nothing better represents the decline of the first function than the plight of the university library.

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Why Do Some on the Left Believe in Income Equality?

In my last post, I discussed why one should care about economic mobility for the poor rather than  income equality.  The basic point is that we should care how well the poor are doing rather than their relative position compared to the rich.  If we can increase the wealth of the poor by $100, we should do so even if that involves giving the rich an extra $200.

So why do some people on the left focus on income equality rather than mobility for the poor.  One possibility is that focusing on income equality allows them to argue directly for the result that they like – equality.  If they had to discuss whether certain institutions, such as free market institutions, helped the poor, it would at best make their arguments messier and at worst sometimes support free markets.  It is safer and simpler to argue for income equality and implicitly assume that money provided to the rich is always taken out of the pockets of the poor.

But this explanation simply moves us back a step: why don’t these people on the left care enough about the poor to focus on their situation, even at the risk of allowing these “argument costs.”  There are several possibilities.

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