Misfiring on the Roberts Court


Stephen E. Gottlieb purports to criticize Chief Justice John Roberts’ leadership of the Supreme Court for failing faithfully to interpret the Constitution to protect democracy. What Unfit for Democracy: The Roberts Court and the Breakdown of American Politics really shows is that Gottlieb, a law professor at Albany Law School, disagrees with some of the Roberts Court’s decisions.

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The Chicago Police, Police Wrongdoing, and the Ferguson Effect

I regularly read Powerline and I like a lot of what they write, but this post by Paul Mirengoff is really problematic.  He writes that “after the release of the video showing Laquan McDonald being shot and killed by the police . . . arrests have declined and gun violence has spiked.”  He calls this the Ferguson effect, suggesting that it is the result of “reducing police interaction with the public.”  Let me discuss some of the problems with this post.

First, it is outrageous to compare this to Ferguson.  In Ferguson, officer Darren Wilson was shown to have acted properly.  In Chicago, officer Jason Van Dyke’s killing of Laquan McDonald was a vicious murder, shown on video.  The police department and the Mayor’s office covered up the video as long as possible and appear to have engaged in other wrongdoing such as eliminating security footage from a nearby Burger King.  I could go on, but see my earlier posts.  Moreover, there is strong evidence that the Chicago police department is rife with corruption, as 80 percent of squad car video cams have been disabled by the police officers.  “Chicago Police Department officers stashed microphones in their squad car glove boxes. They pulled out batteries. Microphone antennas got busted or went missing. And sometimes, dashcam systems didn’t have any microphones at all.”

As Randy Balko states, “This isn’t a few bad apples. It’s 80 percent. Why haven’t these officers been prosecuted?”

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Deferred Prosecution: Meet the Fokkers

Some months ago, I wrote about “deferred prosecution agreements” (DPA’s”). Initially intended to deal with low-level drug offenders, DPAs have become a principal means of prosecuting corporations. The way it works: the government files criminal charges but agrees to drop them if the defendant undertakes remedial action (including fines) and demonstrates good conduct over time. The deal requires “approval of the court” because without it, the deferment would violate the Speedy Trial Act. 18 U.S.C. § 3161(h)(2).

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Justice Thomas: Mr. Republican

(Photo by David Hume Kennerly/Getty Images)

Once again Justice Clarence Thomas has given originalist jurisprudence its most robust defense through his revival of an obscure part of the U.S. Constitution.

In 2010, in McDonald v. Chicago, he had protected the right to individual gun ownership by invoking the Fourteenth Amendment’s Privileges or Immunities Clause. Now he has concurred in the decision in Evenwel v. Abbott (2016), which unanimously affirms the state of Texas’ use of population (rather than being required to use eligible voters) as the basis for devising electoral districts.

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Searching for Loyalty and Prudence


In his provocative and knowledgeable new book, Other People’s Money: The Real Business of Finance, John Kay considers the complex ways that financial systems operate in between the real savers, on one hand, and the real investments, on the other.

He observes disapprovingly how very large contemporary financial systems have become, how much talent they absorb, how big are the bonuses they pay, how they often have lost sight of their basic fiduciary duty, and especially that “volumes in trading in financial markets have reached absurd levels.”

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The Economic Denialism of a $15 Minimum Wage

Both California and New York have passed minimum wage legislation that will prevent in relatively short order their citizens from working for less than fifteen dollars an hour.  The New York bill will double the minimum wage. The California bill will increase the minimum wage by fifty percent. Even in a political climate growing increasing hostile to liberty such legislation stands out as an egregiously irresponsible and ignorant intrusion on freedom.

We hear a lot about “denialists” when it comes to climate change, but these enactments represent a massive denial about basic truths of economics. When a commodity—in this case labor—becomes substantially more expensive, people will buy less of it. The result of these laws will more unemployment for the least able among us.

Does anyone doubt that if newspapers, including those who editorialize in favor of such increases, were required by the government to double their subscription price that they would sell substantially fewer newspapers? Or if the government decreed that salaries of tenured professors must be go up by half, that colleges would substitute other kinds of instructional tools for tenured professors?

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Newark’s Education Reform Debacle

New Jersey Governor Chris Christie, Facebook CEO Mark Zuckerberg, and Newark Mayor Cory Booker  (Photo by Charles Sykes/NBC/NBCU Photo Bank via Getty Images)

“One hundred million dollars?!?” Oprah Winfrey exclaimed incredulously as her studio audience gave a standing ovation. Sitting next to her was Mark Zuckerberg, the young billionaire CEO and founder of Facebook, who had just announced he would donate $100 million to help turn the failing school system in Newark, New Jersey into a national model.

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Avoidant Polity Disorder: Diagnosis and Treatment

doctor workplace

An essential difference between civilization and barbarism is that civilized people conduct politics with words, a precondition of which is that words have objective meanings—they indicate this and not that—and that we are willing to articulate them.

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Carl Auerbach, RIP

Most people reading this will probably not have heard of Carl Auerbach, who died this week at the age of 100, but he was a great and beloved man.

Carl had a long and important life, including being the Dean of the University of Minnesota Law Schools. He was a close adviser to Hubert Humphrey and probably would have been Attorney General had Humphrey not lost to Nixon in 1968. Carl accomplished many things in his career, including publishing the first textbook on the legal process and participating in the classic Skidmore case. He was also a kind of Forrest Gump of the 20th century, knowing many of the famous people. For example, Richard Nixon worked for Carl at the end of World War II.

But for me, Carl was a special colleague, someone who was very much a father figure to me in academia. Carl was the consummate academic, one who insisted on rigor from other academics (as well as from himself).

Carl had very different political views than me, which made our relationship all the more special. Carl was both a socialist (his term) and an anti-communist. Carl used to regale us with stories about this, even though many of us had a hard time accepting his position. After all, we had seen so many socialists who were fellow travelers with communists or at least anti-anti-communists.  But Carl was the real deal. Carl had grown up in an anti-communist family and he watched in post World War II Germany as the Russians took advantage of the West. His views were not welcome to the powers that be and eventually he left for academia. But not before this Forrest Gump met General Patton.

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Unifying the Two Cultures in Law Schools

Almost seventy years ago, C.P. Snow famously warned of a split between two cultures in our universities and society. The first was the scientific culture marked by rigorous modeling and empirical methods. That culture itself divided into defined specialties. The second was humanistic culture marked by a focus on rhetoric and the evaluation of ways of life. That culture was less specialized because it wanted to try to answer some of the great human questions that knew no boundaries.

Snow oddly enough left out the social sciences in general from his schema and law in particular, although the protagonist of his most famous novel, The Masters, was an academic lawyer. But that same cultural divide replicates itself in many of the social sciences and especially on top law schools faculties today. One kind of legal academic is scientific, concerned with models and empiricism. Those working on this side have defined methods—well cultivated gardens of the intellect. And this scholarship tends to be positive, looking at how the world is rather how it should be. The humanistic kind of scholarship is more discursive, sometimes of a bit of jumble.  It is less specialized and tends to the normative.

Snow worried that the loss of a common culture would create cliques within universities and make it harder to solve social problems. Neither technocracy nor the refinement of moral ideals suffices to improve the world.

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