Barack Obama’s Yalta

In February of 1945, Franklin D. Roosevelt traveled to Yalta and ceded geopolitical control of Eastern Europe to Joseph Stalin. At the conference, Winston Churchill could do nothing. In return for the Soviet dictator’s promise of allowing Poland to hold elections to set its postwar political course (and a vague assurance of democratic elections in the other countries occupied by Red Army troops at the close of World War II), the allies let him keep possession of the eastern part of Poland. This was, in effect, ratification of Stalin’s 1939-1941 territorial gains as the ally of Adolf Hitler.

Churchill had consistently attempted to block Stalin’s expansionism, but with the American President distancing himself from Britain, Stalin had little trouble setting himself up for a postwar empire taking in not only Eastern but parts of Central Europe.

Today, with the “framework of understanding” between the United States and Iran on Iran’s nuclear ambitions, Barack Obama has devised his own Yalta.

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Creating a Unitary Supreme Court

I am grateful for Michael Greve’s post on my analysis of Our Two Supreme Courts. I wholly agree with his positive point. The political or aristocratic Court comes to the fore not only in constitutional cases, but in statutory interpretation cases that implicate constitutional values or important political issues. Preemption is a fine example because the broader is the scope of preemption, the more limited is the authority of the states.

I am in less agreement with his normative point. I had argued that the way to dissolve the difference between the legal and the political court was for the Court always to take the same formalist approach that it does in ordinary statutory cases, like interpreting the bankruptcy code. Michael doubts that such formalism is regularly  possible in constitutional law because of the open ended nature of constitutional provisions. But Mike Rappaport and I have argued previously that the common claims that constitutional provisions are abstract and need to be filled in by judges may well be false. Once we know more about their history, we can often determine a clearer meaning of the constitutional provision at issue.

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Which “Common Law” Does the Seventh Amendment Protect?

In my last post, I cited to Renee Lettow Lerner’s paper describing how the Seventh Amendment Jury Trial Right had been given a narrow meaning.  Here I want to address one of the issues concerning the original meaning of the Seventh Amendment.  The Amendment provides: “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.”

One of the most important Seventh Amendment issues is the meaning of “common law.”  When the Seventh Amendment was being debated, some people opposed it on the ground that the common law right to a jury trial differed in the states and therefore it was not clear which version of the right should be protected and which version would be protected by the Seventh Amendment.

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The Failure of Originalism to Preserve the Civil Jury Trial

Recently, the Center for the Study of Constitutional Originalism at the University of San Diego hosted the presentation of a paper on the constitution right to a jury trial by Renee Lettow Lerner.  Lerner’s paper is entitled: The Failure of Originalism in Preserving Constitutional Rights to Civil Jury Trial and here is the abstract:

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The Central Bank of Switzerland Announces a Huge Loss: Would the Fed Ever Be This Honest?


The Swiss National Bank (SNB) has just announced an eye-popping net loss for the first quarter of 2015: 30 billion Swiss francs, or $32 billion[1]. A participant in its recent shareholders meeting shortly before the announcement told me “the directors looked very stressed.”

How does a money-printing central bank lose money?

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Jumping the Inequality Shark: The Antitrust Episode

The left and much of the news media are trying to make inequality the central political issue for our time. Their success would create a bigger state with more discretionary powers and, ultimately, less wealth for those at the bottom, because a focus on inequality per se is not directed to improving the living standards of the worse off. As Margaret Thatcher once replied to an MP who complained that her policies were increasing inequality: “So long as the gap is smaller, [those focusing on inequality] would rather have the poor poorer. You do not create wealth and opportunity that way. You do not create a property-owning democracy that way.”

The dangers of a focus on inequality become salient in a recent column by Eduardo Porter, in which he argues that concern about inequality should lead us to revise a variety of regulations and structures in democratic society. Many of his proposals, like empowering unions, would have adverse effects on the poor, as evidenced by the bad effects of public sector unions on education, but the most absurd example is his call for change in antitrust to account not only for efficiency but also inequality.

In the last half century, antitrust law has been improved by a single-minded focus – on the part of enforcers and judges – on whether government intervention will improve consumer welfare.

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The Burkean Style of Daniel Patrick Moynihan: A Conversation with Greg Weiner

burke 1Frequent contributor Greg Weiner speaks with Richard Reinsch about his latest book, American Burke: The Uncommon Liberalism of Daniel Patrick Moynihan, arguing that Moynihan’s liberalism combined a "stubborn optimism" in what government could and should do with a profound sense of limitations on "how it should attempt to do it."

Our Postmodern Bill of Rights

WE THE PEOPLE written in vintage letterpress type

Last week, John McGinnis had a characteristically insightful post on Our Two Supreme Courts. One is the political court—an aristocratic institution that restrains public passions. On that court, the justices vote their preferences on God, guns, and gays. The other is the legal court, which takes care of boring jurisdictional and CivPro-ey stuff and where the justices, acting as the good lawyers they are, often reach unanimous decisions. The only way to reunite the courts, John writes, is for the justices to bring the legal rigor that’s on display in ERISA or bankruptcy cases to bear on the high-falutin’ ConLaw issues.

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