The Root of the Discretion to Kill

Holder Discusses Obama Administration's Counterterrorism Efforts

Holder Discusses Obama Administration’s Counterterrorism Efforts

President Obama announced a few days ago that he will release some parts of the secret memorandum by which the U.S. government authorizes itself to kill whichever U.S. citizens it deems terrorist enemies. He did so to give political cover to Senate Democrats disinclined to approve an appellate judgeship for David J. Barron, who authored that memo for the Justice Department’s Office of Legal Counsel. The document is a refined version of that by which the government authorized itself to kill U.S. citizen Anwar Al-Awlaki three years ago (which the New York Times summarized here.)

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The Fog of Constitution-making

From a Canadian perspective, America looks a wee bit like a unitary state and not a federal country. In Canada, provinces can opt out of the Charter of Rights, Quebec has its own immigration policies, and so on. Remember Trent Lott? He belonged to something nasty called the Mississippi Sovereignty Commission. Sovereignty… The word gave me pause. I turned to the web site of my native province to see how it described Canadian federalism. What it said was that Canada was a federal country and that provinces were sovereign within their sphere of competence, as defined by the British North America…

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Killing Them Softly

The only man whom I ever knew personally who was executed was the Nigerian writer, Ken Saro-Wiwa. The charge was trumped up, of course. “In this country,” he is said to have said as the hangman put the noose around his neck for a fifth attempt, “they cannot even hang man properly.”

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Machines are Coming to Law (and it’s a Good Thing)

Machines are coming to displace lawyers, and bar regulation will not stop them. The results will be good for consumers but mixed for lawyers. Superstars may be helped, but journeymen lawyers face a less favorable future.

Russ Pearce and I have detailed the present and future effects of machine intelligence in a just published article, The Great Disruption.  In this post I will summarize the way machine intelligence is going to encroach on lawyers’ practices.

Machine intelligence is powered by Moore’s law—the doubling of computer power every eighteen months. For a long a time, computers were not powerful enough to have wide ranging effects on law, but that is now changing. And once computer power invades a domain,  things can change very fast.

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Krugman on the VA but not on the VA Scandal

With the VA scandal in the news, it is worth pointing out that the VA is a form of government health insurance – in fact, of socialized medicine, if you will. Thus, this scandal must be seen as a blemish on socialized medicine. Who says so? Well, in a way, one of the principal defenders of government provided health care: Paul Krugman. In this column from the end of 2011, Krugman wrote: Everyone . . . should know . . . that the V.H.A. is a huge policy success story, which offers important lessons for future health reform. Multiple surveys have found the…

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God, Political Science, and Werner Dannhauser

Anyone who takes higher education seriously attends to the words of legendary teachers. They are likely to be undisciplined, witty, and unfashionable; about great books; ironic about the careerism of their colleagues, students, and administrative bosses; self-indulgent; and insistently erotic, without being creepy.

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A Laurel for the Executive Brow

AUMFA year has now passed since President Obama pledged, in an address at the National Defense University, to “engag[e] Congress and the American people in efforts to refine, and ultimately repeal, the AUMF’s mandate.” It has been neither refined nor repealed, and neither Congress nor the American people—I’ve checked my messages—has been engaged on the topic.

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Cass Sunstein Reviews Richard Epstein’s The Classical Liberal Constitution

At the New Republic, Cass Sunstein reviews Richard Epstein’s new book on the Constitution. I have a mixed reaction to Sunstein’s review, agreeing with parts but disagreeing with more of it.

1. Originalism. Sunstein argues that Epstein’s book is not really originalism, because Epstein uses classical liberalism to interpret constitutional provisions and that is not the right way of determining the original meaning. Here I agree with Sunstein, and have said so in various settings.

But what Sunstein omits here is that Epstein’s vision of the Constitution is quite a bit closer to the original meaning than either the New Deal or the Warren Court visions, which Sunstein seems to recommend. Thus, if we should follow the original meaning, Epstein’s view is to be preferred to our constitutional law today which is influenced largely by the New Deal and Warrent Court visions.

2. The Tea Party Constitutionalist. Sunstein portrays Epstein’s book as the theory of the Tea Party. While there is an element of truth to this, there is also much that is misleading. First, Sunstein does not really know what Tea Partiers believe in detail about the Constitution. For all he knows, they may be originalists who believe a more orthodox version of the Constitution’s original meaning. Moreover, as Sunstein recognizes, Epstein is an independent thinker, who does not play to the crowd.

3. Epstein’s Moral Reading. Sunstein argues that Epstein, rather than providing an originalist interpretation of the Constitution, is instead offering a moral reading in the tradition of Ronald Dworkin. I have raised this possibility myself, so I have some sympathy with it. But I think Epstein’s moral reading is far more attractive than Sunstein does. I agree with classical liberalism and I believe that the original meaning of Constitution was “relatively” classical liberal. If I were not an originalist, I would probably defend something like Epstein’s view of the Constitution. Sunstein can attempt to dismiss it, but I believe that it is very persuasive.

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The Real John Locke—and Why He Matters

LockeScores of textbooks attest that John Locke is the most important intellectual influence on America’s Founding. No other first-tier philosopher can provide a moral and theoretical justification for the United States, its traditional culture, and its form of government. Even the skeptics who question Locke being the only influence concede he was the most significant. The practical problem is that modern experts are confused about what Locke actually thought.

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One Cheer for Scalia on Legal Education

In a speech at William and Mary Law School last weekend Justice Antonin Scalia rejected the idea of a two-year course of legal education and assailed at least some law professors as overpaid teachers of irrelevant material. He is wrong about the two-year path, but half right about some professors.

Scalia’s rejection of the two-year proposal is rooted in his view that three years are necessary to create “a legal professional,” but he provides no evidence for this claim. He does not consider the history of the requirement, which suggests that a three-year law course arose as a method of shielding incumbents from competition, particularly from immigrant families who would have difficulty affording lengthy legal education. Economists are generally wary of process requirements—like a three-year requirement for a law degree—as opposed to a performance requirement—passing the bar exam. The former tends to create a barrier to entry with no clear relation to improved output.

Scalia also does not take into account that law is a very variegated profession and that legal education should reflect this variety.

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