Federal Preemption: The Numbers

The federal preemption of state law is a subject that only dorks could love. Four of them (Jon Klick, Mike Petrino, J.P. Sevilla, yours truly) have just published an empirical analysis of preemption decisions in the Rehnquist and the Roberts Courts. Preemption is the Supreme Court’s daily diet, with three or four cases each Term. So you can actually do the numbers. What the numbers show is that the once-humdrum preemption issue has become a matter of intense ideological contestation.  Preemption cases are less likely to be (nearly) unanimous than the general run of decided cases; and in contested cases, the…

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Article III’s Case-or-Controversy Requirement: The Original Meaning

Another of the papers held at the Works-in-Progress Conference at the Originalism Center at the University of San Diego this past weekend was The Contested History of Article III’s Case-or-Controversy by James Pfander of Northwestern University Law School.  Pfander’s paper provides evidence that early Congresses authorized and courts allowed lawsuits that do not seem to satisfy the modern Article III doctrine in terms of injury in fact and adverseness of the parties.  (While Pfander’s paper is not yet available online, a longer related paper is.)

One of Pfander’s examples is the naturalization proceeding that involved an action by an individual in court seeking citizenship.  The government was not a party to the proceeding.  According to Pfander, this proceeding does not involve an injury in fact and does not involve adverseness.  It does not involve injury in fact, because the applicant for citizenship has not been denied his citizenship by the government.  He is simply applying for it in court.  It does not involve adverseness because the government has not taken an adverse position to the applicant for citizenship.  The government is not involved. Other noncontentious proceedings included administrative proceedings in bankruptcy jurisdiction and ex parte warrant applications.

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Should the Federal Reserve Be Free of Supervision While It Carries Out Vast Monetary Experiments?


The “Audit the Fed” proposal of Senator Rand Paul (R-Ky.) elicits a surprising amount of emotion, from opponents and supporters alike. Why should this be?

“Monetary policy” purposefully sounds technical and dull—you like it that way if you want to keep it the domain of supposedly objective experts who don’t want any mere politicians interfering in their elite central banking club. But money affects everybody and is an emotional topic, especially if the Fed is on purpose crushing you, as it currently is doing to savers, in order to benefit borrowers and speculators.

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Burke, Historical Experience, and Change

At the Federalist Society national student symposium, my colleague Josh Kleinfeld was the deserving recipient of the Paul Bator Award given to an outstanding law professor under 40. His beautiful acceptance speech focused on the importance of Burkean conservativism.  And Kleinfeld is correct: the right owes an enduring debt to Burke’s skepticism of ordering society according to the abstractions of the kind advocated by the French philosophes. That debt is all the greater, now that these types of philosophes have gone global.

But I do wonder whether one aspect of Burkean conservatism—deference to past historical experience—deserves quite as much weight today as it once did.  Burke had both religious and more instrumental reasons for valuing that experience. For Burke, history was “the known march of the ordinary providence of God.” More secularly, it was also the best repository of human prudence and wisdom and thus the best guide to policy in an uncertain world.

But the value of historical experience as a guide for policy depends on the technological and social rate of change and on the availability of alternative methods of sifting experience.

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Judicial Activism Isn’t the Remedy Publius Prescribed: A Reply to Evan Bernick

philo-publiusTo gauge how carefully they have read Federalist 10, I often ask students on what constitutional institutions Madison relies to solve the problem of majority factions. It’s a trick question, the last refuge of the professor. The answer is none. Madison reaches the end of the essay, proclaiming a “republican remedy for the diseases most incident to republican government,” without mentioning the Constitution, a Bill of Rights or, significantly, the courts.

That has not dissuaded advocates of an assertive judiciary from quoting Madison on the “mischiefs of faction” to support their cause. The most recent is Evan Bernick of the Institute for Justice, who, at the Huffington Post, has taken my post on judicial restraint to pointed task. “Professor: Who Needs Judges?” the headline announces. “Let’s Put Our Constitutional Rights to a Vote.”

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Lumpen Proletariat on Campus


Today is “National Adjunct Walkout Day.” If you did not know this, or even what an adjunct is, you’re not alone. The word “adjunct” means something added to another thing but not really a part of it. In this case, we’re talking about adjunct instructors, who are part-time university and college teachers who carry a hefty portion of the educational load on America’s campuses.

National Adjunct Walkout Day is a nationwide proposal for adjuncts to bring attention and reform to abusive working conditions by refusing to teach, or some other similar remedy.

For the record, I’ve been employed as an adjunct instructor at four different colleges and universities over the past five years. In that time, I’ve taught almost 30 different classes. I am paid anywhere between $1,500 and $3,500 per semester class.

Although I’ve considered writing about this topic for some time, I’m doing so now for two reasons. First, I’m concerned about the direction of recent events, especially National Adjunct Walkout Day. Second, I seek to challenge the prevailing opinion that adjuncts are somehow the victims of unfair employment practices.

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Conserva-rrific Liber-lennials

  When a political movement changes labels, that usually means its adherents are unelectable. Take the Democrats in 2004. When the presidential candidacy of Massachusetts Senator John Kerry, a liberal protégé of the state’s senior senator, Ted Kennedy, went down in flames, their party almost immediately switched from the buzzword “liberal” to “Progressive.” Not only was this changing the subject, it was reaching for the latter term’s historically bipartisan connotations. The Democrat Woodrow Wilson had been adapting himself to a doctrine first put into circulation in national politics by a Republican, Theodore Roosevelt. The initiators of the change in emphasis, Democratic consultants Paul…

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The German and Dutch Founding-Era Translations of the Constitution

This past weekend, the Center for the Study of Constitutional Originalism at the University of San Diego held its Sixth Annual Works-in-Progress Conference.  I had thought I might blog about a couple of the papers.

One of the papers – Founding-Era Translations of the Federal Constitution by Christina Mulligan, Michael Douma, Hans Lind and Brian Patrick Quinn – involved the discovery of some new information about the original meaning of the Constitution.  At the time of the Constitution, significant portions of Pennsylvania and New York were respectively inhabited by German and Dutch speaking citizens.  As a result, the Constitution was translated into German and Dutch during the ratification contests in these states and these translations were relied upon by the German and Dutch speaking citizens.

For originalists, these translations represent an important new piece of evidence about the original meaning.  They are in some ways similar to commentary at the time that indicates the meaning of the Constitution.  But the translations differ in that they translate the entire Constitution.  And unlike contemporary dictionaries, the translations are in context – that is, rather than the modern originalist having to consult a dictionary with a number of word meanings, he needs only to review the word that the translator inserted into the specific clause. 

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The Predictably Partisan Kennedy Court


According to our Constitution, the President nominates, and with the consent of the Senate appoints, the judges of the Supreme Court. In only 12 of the last 30 years has a single party controlled the presidency and the Senate; therefore, only during those years has there been (largely) uni-partisan control over the selection of new members of the Supreme Court.

All nine of our justices were appointed during the last three decades. Seven, however, were chosen during those more uni-partisan years. Four were appointed under Democratic dominance: Justices Ginsburg, Breyer, Sotomayor, and Kagan. Three were appointed under Republican dominance: Justices Scalia and Alito, and Chief Justice Roberts.

The other two, Justices Thomas and Kennedy, were chosen by a Republican President and confirmed by a Democratic-controlled Senate. In Justice Thomas’s case, his 52 to 48 confirmation vote was nearly uni-partisan—and bitterly so: a handful of conservative Democrats, including future Republican Richard Shelby of Alabama, joined nearly all Republicans in (barely) consenting to Thomas’s appointment. Justice Kennedy, in contrast, was nominated by President Reagan but then unanimously endorsed by the Democratic majority in the Senate. In this respect, his appointment was peculiarly and distinctively bipartisan.

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Share–and Care–Alike

In the sharing economy, companies like Uber, Lyft, and Airbnb, add value by using resources that would otherwise be idle.  The Internet connects people who need transportation or accommodations with people who are willing to provide them. Another substantial advantage is that these same connections permit social norms rather than government regulation to enforce standards of good conduct.

Government has a model for regulating taxis. It generally requires substantial licensing and enforces rules by tracking complaints and disciplining drivers found in violation. But a company like Uber makes much of this regulation unnecessary. First, given its substantial capital investment, it has every interest in checking out drivers itself before it permits them to represent its good name.

But Uber also makes use of social media to assure continuing good behavior of its drivers.

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