Liberty Law Blog

Public Choice Originalism

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Two giants of the intellectual right died last year, Robert Bork and James Buchanan. The first will be forever identified with originalism and the second with public choice. The Law & Economics Center of George Mason Law School invited me and other scholars to commemorate their work and that of Armen Alchian, a fine economist and price theorist who also died in 2013.

Thinking about the contributions of Judge Bork and Professor Buchanan together helped me understand the strong relationship between the rise of public choice and rise of originalism. The public choice view provided support for a constitution with features that constrain ordinary politics, protecting key social institutions like rights, federalism and the separation of powers. Originalism provided a theory of interpretation that supports these constraints on democratic politics, preventing them from being eroded by the forces that would favor their erosion, according to the predictions of public choice itself. I thus decided to write about the relation in essay called: Public Choice Originalism: Bork, Buchanan and the Escape from the Progressive Paradigm.

Here is a bit from the introduction of the paper: Continue Reading →

Friday Roundup, February 7th

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  • February’s Liberty Law Forum engages the questions of what is American liberty and what is required to support it. Lead essay by Ted McAllister with responses from Bradley Thompson, (and upcoming) Steven Grosby, Bill Dennis, and Hans Eicholz.
  • Getting from aid to enterprise: The next Liberty Law Talk discusses with Michael Miller, director of the Acton Institute’s PovertyCure documentary, the conditions that should guide any approach to assist human flourishing in the poor regions of the world. Frequently missing, Miller highlights, in current interventions is an understanding of how crucial the rule of law, property rights, and markets are in the uplift from poverty, and that frequently, these economic and legal orderings are absent in areas of hardship.

When democracy was restored in Spain I was elected to Parliament as a lonely libertarian in a conservative ticket. I was not cut out for the job and did not stay long. Does this mean that I had not understood and digested the lessons of The Prince?

[T]he authors of the Federal Reserve Act could certainly not have even imagined, let alone expected, what their creation has become in a century. They would have been utterly dumbfounded at a Federal Reserve that:

— Is formally committed to, and is producing on purpose, perpetual inflation.

— Has no link of any kind to a gold standard.

— Thinks it is supposed to, and that it is capable of, “managing the economy.”

— Invests vast amounts in, and monetizes, real estate mortgages.

— Has chairmen who achieve media star status, as for example, “The Maestro.”

— Wields the authority of a unitary central bank, centralized in Washington D.C., rather than being a federal system of regional “reserve banks.”

A Progressive Mr. Smith Goes to Washington

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On Monday, The New York Times published “A New Way to Rein In Fat Cats,” an op-ed advocating an action so obviously foolish with such frivolous arguments that it is extraordinary that the paper of record thought it fit to print. Sadly, it may well be a harbinger of the direction of progressivism today.

In “Fat Cats,” Douglas Smith argues that the President should issue an executive order governing the ratio of compensation paid to the highest-paid executive relative to the lowest-paid employee in companies that contract with the federal government. According to Mr. Smith’s calculations, the ratio should not exceed the ratio of the President’s salary to the annual income of an employee earning the minimum wage.

Smith’s comparison of the President’s salary to those of highly paid executives is simply fatuous. Any President can enjoy an enormous income stream for years after holding the highest office of the land by virtue of having held that office. Look at Bill Clinton.  Moreover, the President’s current annual salary – $400,000 – does not count perquisites of the office, such as residence in the White House and the use of Air Force One. These benefits dwarf those of any company’s chief executive. Most importantly, the President enjoys enormous non-monetary benefits that are not available in other jobs—the chance to move the nation toward one’s political ideals for human welfare and earn a place in American history, to name just a few. Certainly I would be delighted to be President for a twentieth of the salary currently paid, and I am sure that is true of thousands, if not hundreds of thousands of other people.

His leading argument for his proposal is that “it is our money after all.” Continue Reading →

A Record Year for Exonerations

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I knew that there was a lot of stories on persons wrongfully convicted of crimes (as I said in this post). Now it is confirmed:

The number of exonerations in the United States of those wrongly convicted of a crime increased to a record 87 during 2013, and of that number, nearly one in five had initially pleaded guilty to charges filed against them, according to a report to be released on Tuesday as part of a project led by two university law schools.

The report, which I skimmed, is interesting. It discusses the causes of the exonerations:

For all exonerations, the most common causal factors that we have identified are: perjury or false accusation (56%); official misconduct (46%); and mistaken eyewitness identification (38%).

And this:

For homicide exonerations, the leading cause of false conviction is perjury or false accusations, mostly deliberate misidentifications. Homicide cases also include a high rate of official misconduct, and 75% of all false confessions in the database.

The great majority of sexual assault and robbery exonerations include mistaken eyewitness identifications, mostly by the victims. Many sexual assault cases also include bad forensic evidence.

All of this is fascinating. But one aspect of the article and report is worthy of mention: the article and report treat these cases as exonerations. But these cases do not necessarily involve convicted persons who were innocent. Rather, the report often includes cases where there was enough new evidence to vacate the conviction and the prosecutors decided not to have a new trial. Typically, this means that there was some mistake at the original trial, but it does not prove that the person is innocent. Still, if the defendant’s trial was seriously faulty, it is appropriate to vacate it and that may lead to release.

Posner’s Tyranny of Expertise

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Richard A. Posner has been called his generation’s “Tenth Justice,” a judge like Learned Hand or Henry Friendly whose prolific intellect and erudite jurisprudence rank him in quality and influence among members of the Supreme Court despite never having sat alongside them.[1] Readers of Posner’s new book, Reflections on Judging, may both concur in his ranking as tenth and be grateful that he stayed that way. Continue Reading →

The FDA and Multiple Sclerosis

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Sadly, there is more blood on the hands of the FDA. Its as if these people care only about their regulatory program rather than the lives and health of people. Of course, that couldn’t be – that would be unspeakable.

The Wall Street Journal has a piece on a drug that is capable of dramatically helping some people with multiple sclerosis. The drug has been approved in “30 countries, including Canada, Australia and all members of the European Union. But on Dec. 27, Food and Drug Administration reviewers at the division level (subject to a final decision by top officials) rejected an application to use the drug here to combat MS.” Sadly, the division level reviewers are rarely if ever overruled.

Why did the FDA lords refuse to approve the drug?

The primary reason FDA reviewers gave for rejecting Lemtrada was that the studies demonstrating the drug’s efficacy did not conform to the agency’s standard requirement of double-blind, placebo-controlled drug trials—where some patients, unbeknownst to themselves and their doctors, receive placebo treatments. There are excellent reasons for the standard approach, but only up to a point. Lemtrada and many established MS treatments have immediate side effects, such as nausea and headaches, that are well known to doctors and patients. A double-blind trial would not really be blind. Patients on a placebo would promptly discover that they were the “controls,” and many would decline to participate further—scrambling the statistical comparison with patients receiving real treatments.

The article continues:

For Lemtrada, the FDA reviewers announced that the trials were not “adequate and well-controlled.” They are now demanding another round of trials, with somewhat different procedures, that would take years and cost at least $100 million. Given the magnitude of the results of the already completed trials, the additional trials could add nothing to answering the regulatory question of whether Lemtrada is suitable for clinical use against MS.

If one of my family member needed this drug, I would be protesting. I would find out who the peope were who turned it down and I would protest in front of their house with dramatic images of the infirmity this disease causes. Let these doctors explain their actions to the children and their neighbors. Continue Reading →

‘Behind Metaphor, More Metaphor’

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Every intellectual likes to believe that he is struggling manfully against the hostile zeitgeist, or else what would be the need for intellectuals? His belief that he is not only in the minority but currently losing the battle against the opposing forces of obscurantism and wrongheadedness allows him the pleasures both of self-pity and self-congratulation. He likes to believe that he has suffered for his views (for can there be better evidence of holding the correct opinions than having suffered for them?), while at the same time making a comfortable living from them. Continue Reading →

The Internet–A Technology for Encompassing Interests and Liberty

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As a counterforce to government intrusions, technological advances have generally promoted liberty. Among the most powerful of these forces is the internet—the medium of this blog. In the book Technologies of Freedom, Ithiel de Sola Pool showed how the printing press was indispensable to the transformation from monarchy to democracy. The printing press was certainly essential to creating a constitutional, continental democracy in the United States, for, as de Tocqueville observed around that time, organization for the public good “cannot be conveniently and habitually done without a newspaper. Only a newspaper can put the same thought at the same time before thousands of readers.” In 1789 the printing press fostered the most widespread deliberation on fundamental law that the world had ever known.

The history of liberty has been in no small measure the struggle between diffuse and encompassing interests, on the one hand, and special interests, on the other.  Through their concentrated power, special interests seek to use the state to their benefit, while diffuse interests concern the ordinary citizen or taxpayer, or in William Graham Sumner’s arresting phrase, The Forgotten Man. When the printing press was invented, the most important special interests were  primarily the rulers themselves and the aristocrats who supported them. The printing press allowed the middle class to discover and organize around their common interests to sustain a democratic system that limited the exactions of the oligarchs.

Bu the struggle between diffuse and special interests does not disappear with the rise of democracy. Continue Reading →

Another Man Serving 20 Years Released – and a Possible Reform

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I hate to sound like a broken record, but these cases keep on coming.  Dewey Jones was convicted 20 years ago of murder.  But:

Defense attorneys have said there was never any physical evidence linking Jones to the slaying of 71-year-old Neal Rankin in 1993. The state’s star witness — a jailhouse snitch and career felon who claimed Jones confessed to him — died in a shootout with police.

After Thursday’s hearing, two rows of Jones’ supporters wiped tears and loudly applauded the ending.

“This is the kind of case that you dream about when you’re a law student: Freeing an innocent man,” VanHo said. “This is it. And we actually got to do it.”

Jones has always maintained his innocence, but few believed him until the Ohio Innocence Project took up his case and persuaded a judge to allow DNA testing on crime-scene evidence that police had collected but not examined with modern techniques.

The new DNA tests of crime-scene evidence found unknown samples of male blood on a piece of nylon rope used to tie Rankin’s wrists, a knife used to cut the rope and a section of fabric from the victim’s shirtsleeves.

In this case, the government was still resistant to allowing Jones to be permanently freed.

Institutional reforms that address these issues are difficult. For example, see this discussion between Will Baude and Ilya Somin.

The government – prosecutors and police – often resist these cases based on individual incentives and the reputation of the government. For that reason, I wonder whether there ought to be a special department established – loosely on the model of Internal Affairs divisions – that should consider these cases. They should have as their mission the fair treatment of the convicted and should not be answerable to the ordinary prosecutors and police officials.

Certainly, the same prosecutor who was involved in the case should never be involved in reviewing their own conduct.

Obama’s Left-Wing Foot

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My Left Foot is a touching film (and novel) about a poor young Irishman, Christy, with cerebral palsy; he can neither walk nor speak. But he has a shrewd mind and uses his left foot, the only limb he controls, to draw, paint, and thereby express his soul.

President Obama’s recent State of the Union Address also told a tale about overcoming disabilities. The disability metaphor extends through the entire speech and culminates at the end, when he introduces his special guest, a severely injured Afghan war veteran: Continue Reading →