Liberty Law Blog

Judge Bork’s Unstoppable Ideas

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I had the good fortune to be asked recently to contribute to a memorial symposium on Judge Robert Bork’s work in the University of Chicago Law Review’s online forum. My essay showed that he was a prime catalyst for both originalism and law and economics—two movements that push law back toward being once again an instrument of social well being.   These dual, dynamic contributions made him the most important figure of the intellectual legal right in the latter half of the twentieth century.  And his ideas could not be defeated by the Senate vote that denied him a seat on the Supreme Court.

I noted: Continue Reading →

Group Preferences: Opiate of the Intellectuals

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Twenty years ago I published a novella in which a purported serial killer, using all the arguments of liberal or radical criminology, proved to his own satisfaction that not only that he was as good as the average citizen, but better. To my surprise an eminent critic thought that my character expressed my own views, which he then criticized as if they had been meant seriously. Was the fault mine for not having made myself clear enough, or his for having been so obtuse? Continue Reading →

The Old Regime and Arbitrary Rule

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President Obama’s claim of executive omnipotence (“I can do whatever I want”) merely brought attention to the constitution under which we have been living: The chief, and those whom he appoints directly and indirectly, are not obliged to any law. Congressmen and senators too, free from votes for which they can be held responsible, can enjoy their rank among brokers of the profit and prestige, of the Trillions, which the modern administrative state dispenses. Obligations exist only among this vast public sector’s functionaries and beneficiaries — the ruling class. Continue Reading →

Justice Scalia on the Importance of “The Republican Spirit” and Civic Education

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Recently, Justice Scalia made a lot of news when he faulted Chicago deep dish pizza. He noted that it is more like a “tomato pie,” and “shouldn’t be called pizza.” (As a native of Staten Island, I couldn’t agree more!). But during his speech at the Union League’s 126th George Washington’s Birthday Gala, Justice Scalia spoke to a much higher power than pizza.

He opined on the relationship between civic virtue, or what he called “the Republican spirit” and a “successful republic.” Continue Reading →

Two Cheers for the CBO

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The new report of the Congressional Budget Office, showing substantial job losses from the Obama administration’s proposed hike of the minimum wage to $10.10 has changed the tenor of the debate in Washington. A nonpartisan, professional agency’s considered opinion is hard to ignore, although White House and congressional spinners are trying to deflect its findings. Our national conversation has suddenly deepened and it is now harder for politicians to claim credit for a free lunch. We need more such institutions to inject accurate information into the fact free zone that is our nation’s capital.

The Congressional Budget Office, begun in 1974, is staffed by professional economists, not political appointees. To be sure, its director is appointed by House and Senate leaders, but the norm now is to appoint an economist of independent academic stature, not a political hack. Four factors make the CBO a credible organization. First, it has no actual power to implement policy and thus is less likely to shape its agenda to fit the usual imperatives of bureaucratic aggrandizement and personal ambition. Second, its mandate is broad in scope: an agency with a narrower reporting focus, as for instance on a particular policy, is more likely to be captured by those in the field on which it is reporting. Third, its staff and its director have professional reputations to maintain and thus incentives to avoid politically driven and result oriented analysis. Finally, their reputations are made and maintained in the field of economics,  a path breaking social science in its capacity to use quantitative methods to analyze the past and predict the future. There is an objective basis for their work.

The CBO’s report on the minimum wage noted other costs that have not been as widely reported. An increase in minimum wage to $10.10  would also create not insubstantial price increases. Continue Reading →

Friday Roundup, February 21st

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  • Common Core Nation: My interview with Sandra Stotsky, leading critic of the Common Core State Standards.

Ekins skillfully defends the ancient idea that a legislature can intend to change law, and the job of courts is to give effect to that intent. The law created by a statute is not merely the assemblage of signs of which the text is constituted. Rather, law is the set of propositions to which the text points. Positive law is a reason for the actions of judges (and others) even when the text by itself is not fully determinate.

  • In this report on the plight of artists and their lofts in trendy Manhattan neighborhoods who must receive NYC approval to be re-certified to retain their space, I wonder if the New York Times just defended free speech in campaign finance. Same problem. In this instance, the government is deciding who is an artist. But if this gives the paper of record the willies, then why is it reasonable for the government to decide who is a legitimate publisher and, therefore, exempt from the campaign finance regime?

Eliminating Inequality?

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So President Barack Obama and the Democratic Congressional leadership are going to end inequality? A half century after President Lyndon Johnson’s attempt to eliminate poverty, progressives aim higher. While cynics may think the real goal is changing the subject from Obamacare, most progressives actually have kept the faith. Eliminating inequality guarantees the moral high ground, especially with a supportive media who also desperately want to believe and who will faithfully transmit whatever theme their political allies send their way. Continue Reading →

American Liberty and the “Pursuit of Happiness”

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In reflecting further on the issues raised by Ted McAllister’s emphasis on the American historical experience of liberty in this month’s Liberty Law Forum, I find myself returning again to consider the meaning of a particular phrase of the Declaration of Independence: “the pursuit of happiness.” I have written about this before in other places, but McAllister’s highlighting of historically lived experience, brings out the significance of this passage even further. Continue Reading →

Free Trade as an Instrument of Pax Americana

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Free trade not only creates economic benefits but advances the security of the United States. It is clear that today we have become less willing to bring about a Pax Americana though military strength.  The disillusion with the results of wars in Afghanistan and Iraq, the sharp cuts to the defense budget, and most of all, the ever growing entitlement state makes it more difficult to project for the long term American force on the world.

But even in the absence of force, free trade can help make the globe safer and the United States more secure. By connecting individuals in different nations through the web of commerce, trade makes war less likely by giving more people a greater stake in avoiding the disruptions of conflict. This insight goes back to Adam Smith and David Hume who celebrated “la douce commerce.” A more modern insight is that democratic nations are less likely to disturb world peace. Given that wealth tends to promote democracy, free trade helps on that front as well. Finally, free trade puts more people in contact with American goods, including its information laden goods, like entertainment. It thus constitutes the most effective form of soft power.

The efficacy of free trade as an alternative mechanism to military strength  for maintaining security makes it all the more disappointing that the President Obama is not pressing hard for it, particularly because it is he who has cut the defense budget and done nothing to reform the entitlement state that enervates our capacity to sustain long term military engagements. And free trade is indispensable for the achievement of his own particular policy goals, most importantly the pivot to Asia. Continue Reading →