Will the federal judiciary start supervising elections by taking over the reapportionment process?
The conservative movement in law has changed substantially in the last half century. At the beginning it was a reactionary movement. The core consensus was that the Warren Court has been out of control, acting more like politicians focused on changing society rather like justices following the law. Insofar as conservatives even had a theoretical critique, its essence varied. One was that Court was activist in that it failed to pay sufficient deference to the political branches. A second was that it abandoned the craft of law, generally defined as following precedent or neutral principles that can be derived from precedents and legal process. A third was that the Court had abandoned the principles of the Founding or intent of the Framers. A final was substantive: the Court’s decisions, particularly in the area of criminal justice, were simply too liberal.
Fifty years on, the movement looks completely different in theory, power, and effect. As to theory, public meaning originalism, albeit of different varieties, dominates. While there are disagreements about the degree of deference, if any, owed the political branches, there is a growing consensus that this question is just another one to be answered by originalism. Perhaps the most important unsettled question is the place of precedent in originalism. But the view that precedent should be a generative force in law is no longer widely supported by theorists on the right. And since conservatives are now adherents of originalism, their methods sometimes support liberal results, particularly in the area of criminal justice.
As to power, during the Warren years, only a very few conservative scholars of public law worked in its shadow. Now originalism has many advocates in the academy and outside, and almost all conservative scholars who publish on the theory of constitutionalism are originalists.
My problems with What Happened, Hillary Clinton’s nearly 500-page self-proclaimed explanation for why she isn’t the 45th President of the United States as she fully expected to be, began around page 7. Clinton was describing how it felt to be sitting on the inaugural platform on the West Front of the U.S. Capitol when Republican Donald Trump, the man who actually won the election, was sworn in: “The day was unusually warm.”
It’s become a familiar question: Where are the Muslim voices of protest against the violence and misogyny of Middle Eastern culture?
Many people, particularly on the left, argue that the modern economy is increasing inequality. But, as I have discussed before, important trends in innovation increase equality. One example of these equalizers is the sharing economy. The ideas of a law and economics theorist of the developing world show how this new economy generates a greater return on the assets that people of modest means are most likely to own.
Economist Hernando De Soto recognized that much of the capital in developing nations was locked up. For instance, squatters lacked property rights in their houses even after decades of living there and improving the land. But legal reforms providing capital can greatly enliven previously dead capital in those nations. When a squatter becomes a property owner, he can mortgage his property and use the proceeds to start a small business.
The advantages of these legal reforms go almost entirely to people of modest means. Not only did the rich generally always have formal title to their real property, even more importantly real property is a much smaller proportion of their total assets, which are mostly financial securities.
Similarly, the sharing economy enlivens important capital assets in the developed world. As Daniel Rothschild suggests, this unlocking creates prosperity. But it also boosts equality because the assets it enlivens are those which make up most of the wealth of people of modest means.
I love Gregg Popovich, head coach of the San Antonio Spurs, as a coach and as a personality. One of the two or three greatest coaches of all time, Popovich’s teams play smart basketball and the colorfulness of his personality adds greatly to the game. He is even fun to make fun of – see here at 1 minute, 58 seconds. Unfortunately, Popovich has been speaking out on politics recently. Here is an excerpt from a speech: "Obviously, race is the elephant in the room, and we all understand that, but unless it is talked about constantly, it is not going to…
State attorneys general from 41 of the 50 states are investigating the opioid industry. New York Attorney General Eric Schneiderman said he is committed to “using every tool at our disposal” to pursue the $500 billion Big Pharma industry, and has unleashed Martin Act subpoenas upon numerous opioid manufacturers and distributors. The press release put out by the Attorney General of Connecticut, George Jepsen, urges haste:
We recognize that time is our enemy and that we should pursue all means to ease this crisis as quickly as possible. For that reason, we have encouraged and will continue to encourage the pharmaceutical industry – both manufacturers and distributors – to engage constructively with the attorneys general towards meaningful agreements that may be achievable sooner than full-scale investigations and litigation may permit. As we have shown in other contexts, broad coalitions of attorneys general can effectively impact national problems through litigation or settlements, often more effectively than they can when acting alone. Our collective efforts are particularly important at a time when many Americans despair about the capacity of government to function effectively in the face of challenges. (Emphasis added)
Connecticut AG Jepson’s announcement of the meteoric rise in the number of states joining in the investigations, his jab at legislative passivity while flexing that most unlawful of state powers—namely, regulation by litigation—and the anything-but-subtle suggestion of a fast settlement bodes ill for the rule of law.
Newspapers are a dying communications medium yet the Wall Street Journal, which first saw print in 1889, is still going strong.
A lot of what occurs in academia these days is quite distressing. And it is enough to drive one further towards the tribal view of the other side being bad guys. Thus, it is important to try to find ways of avoiding this fall into the abyss. One of those ways is a commitment to academic ideals.