Politics, Yes; Agency Experts, No

FCC

In an earlier post I commented on President Obama’s success in bulldozing the Federal Communications Commission (FCC) into regulating the Internet as a public utility. GOP legislators have since vowed to look into the matter; among other things they’ve asked the FCC to turn over all correspondence with the White House, to learn whether there has been any “illegal coordination” between the President’s flacks and the “independent” FCC. This strikes me as a rather pathetic response and an unhelpful distraction.

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Safe Harbor Originalism

safe harbor

Originalism’s success has resulted in a rapidly expanding body of scholarship by a richly diverse group of constitutional theorists, many of whom “tweak” the method in order to bring it within their preferred normative theory. This is the cost of success—everyone wants to play.

There are many ways to be an “originalist.” However, not all ways are originalist, and even those that are arguably originalist will not be equally accepted by practitioners of the method. If originalism is to maintain a degree of coherence as an interpretive option, its advocates are now pressed to define it, and to do so in a manner that distinguishes the method from its rivals while still leaving room for healthy exploration, disagreement, and development.

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The Battle for Open Skies

An article in the New York Times this week described how domestic airlines are conspiring with their unions to weaken open skies agreements. These agreements permit American and foreign carriers access to one another’s markets on a reciprocal basis. They empower airlines to decide where and how often to fly internationally, based on market conditions, not national quotas or other irrelevant considerations. The result are good for airline passengers. Fares become lower, and more international flights go from more cities in the United States to more cities abroad.

The most troubling aspect of the article was that the Secretary of Commerce, Penny Pritzker, and the Secretary of Commerce, Anthony Foxx, were entertaining the American airlines’ and unions’ request for restrictions on the entry of new foreign airlines into the American market. Their complaint is that deep pocketed airlines from the Middle Eastern countries, like the United Arab Emirates, were engaging in “unfair” competition and thus their flight plans needed to be blocked.

These Secretaries should have directed the airlines and their unions to take their complaints to the Justice Department, because competition laws are the best way to assess whether the foreign airlines are acting anti-competitively.

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Even in Prison, One Can be Free

Kayla Mueller's family has released the following letter that Kayla wrote to them while she was imprisoned by Islamic State terrorists: Everyone, If you are receiving this letter it means I am still detained but my cell mates (starting from 11/2/2014) have been released. I have asked them to contact you + send you this letter. It's hard to know what to say. Please know that I am in a safe location, completely unharmed + healthy (put on weight in fact); I have been treated w/ the utmost respect + kindness. I wanted to write you all a well thought out letter (but…

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First Came Bush, Then Came Obama: The Case of College Funding

My coblogger, John McGinnis, recently had a great post about the new programs for forgiving college loans for certain students.  John was responding to this article in the New York Times about the programs. John had three complaints about the program, all of which I agree with: First, differential forgiveness [which forgives loans for people who work in the so called public interest sector but not the private sector] could distort choices in the labor market, to the disadvantage of the private sector. .  . .  Second, more favorable terms for student borrowing takes away pressure on educational institutions to cut costs. …

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The Passive Aggressive Vices

Supreme-Court-sign

Yesterday the Supreme Court refused to stay the lower court decision requiring recognition of same-sex marriages in Alabama. Commentators have already suggested that this refusal shows that it will decide in favor of the right when it hears and decides the case later this term.

In my view, the more interesting lens through which to view the order is the Supreme Court’s strategic manipulation of judicial process to give momentum to same-sex marriage. This momentum helps make its ultimate decision seem like a fait accompli and thus less likely to cause political backlash.  The first step in this strategy was Justice Kennedy’s opinion in United States v. Windsor  that had a strategic ambiguity as a matter of doctrine: whether its holding on the constitutionality of the Defense of Marriage Act (DOMA) was based on federalism or substantive rights was unclear. But the opinion did convey the clear implication that the decision to have a single federal rule on the issue was driven by animus against homosexuals. These statements made lower court judges fearful of seeming like bigots, if they rule against constitutional challenges to state laws.

When these courts ruled in favor of the challenges, after a time the Court began to refuse to stay their decisions or accept petitions from the states to overturn them.  These lower court decisions then created more facts on the ground and yet more momentum for a Supreme Court decision in favor of same sex marriage on the merits.

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Christian Anti-Semitism and the Rise of the Modern State

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Over 10 million Google results confirm “Christian Anti-Semitism” as a widespread concern, a historical and continuing moral flaw embedded in Western civilization. The Washington Post and the Wall Street Journal recently led their weekend book sections with reviews on the Holocaust and lingering Jewish stereotyping today.

It takes one cool academic to sort through the morass of relationships between Christians and Jews over time. Sara Lipton, historian at the State University of New York at Stony Brook, might just be up to the job. Her book Dark Mirror: The Medieval Origins of Anti-Jewish Iconography looks at all surviving pictorial representations of Jews across European history to evaluate at least elite views of this relationship.

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Slippery Words and Evil Deeds

HighNoon2

No word is so misused as the word “cowardly.” Terrorist attacks are often said to be cowardly, when in fact the terrorists who carry them out for the worst of ends are sometimes extremely brave. They risk their lives and even intentionally lose them by their acts. At the very least they risk long and condign legal punishment and public opprobrium. I doubt if one person in a thousand can claim to have acted in his life as courageously as most terrorists.

The reason we call terrorists cowardly is that bravery is generally considered a virtue, and we are reluctant to accord people whom we abhor any virtues at all. We want our enemies to be endowed only with detestable qualities, and we are only too aware that courage is the virtue without which other virtues cannot be exercised. If someone were to say “these brave terrorist attacks,” we should suspect him of sympathizing with them.

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Judges are Less Extreme than Lawyers (and That’s a Good Thing)

 

wooden gavel and books

A new study shows that American judges, particularly federal judges, are more conservative than the average lawyer. It contains a lot of interesting information, but its normative conclusion–that this disparity shows “politicization” in the judiciary– is wrong-headed.  Indeed, that claim likely shows more about the politicization of the academia than anything about the judiciary.

The study seems well designed. It uses campaign contributions as a proxy for the political affiliations of lawyers. In this respect, as the authors recognize, it follows a 2004 article of mine, which showed that law faculty at elite law schools contributed to Democrats over Republicans by a margin of about 11-2. And this new study reveals interesting information, as  most easily visualized in this hyperlinked chart. Lawyers are by and large liberal. As one would expect, legal academics and public defenders are more liberal than partners at top law firms, but these partners are liberal as well.  Lawyers from T-14 law schools are more liberal than those from lower ranked schools.  Female lawyers are more liberal than male lawyers. Federal judges are less liberal than lawyers as a whole and federal appellate judges break slightly to the right.

So far, so good. But then the study makes the claim that this difference represents the “politicization” of the judiciary.

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Corruption: The Week in Review

StandardPoors

This past week brought more news of wholesale public corruption. Jaw-dropping except that it’s becoming routine, and we are becoming inured.

Standard & Poor’s paid a $1.5 billion settlement ($125 to Calpers, with the remainder split between the feds and the states) over its alleged manipulation of ratings of mortgage-backed securities back in 2004-2007. If the allegations are true, $1.5 billion is a pittance to pay for the wreckage wrought in the mortgage meltdown; once again, a company got off cheap because it’s too big to jail.

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