Hayek in New York

Friedrich Hayek, born into a noble family in Austria, lived a fascinating life.  Educated in Austria, he moved to the London School of Economics in 1931.  In 1950, he accepted a position at the University of Chicago on the Committee on Social Thought (after the free market economics department refused to extend an offer to the future Nobel Laureate).  And then in 1962, he returned to Europe, first in Freiburg and then in Salzburg.

But in 1923, in the middle of the hyperinflation in Germany and Austria, Hayek travelled to New York City to work with a NYU economics professor.  But when the professor left to write a book, Hayek was on his own and struggled for resources.  Over at Austrian Information, they have excerpts from Hayek’s letters that he sent home during his stay in New York.  They are fascinating, especially given their European cultural criticism of capitalist New York from this free market thinker.  For example:

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Deconstructing the Grand Jury

grand juryThe tragedy that is Ferguson now distills to this: To vindicate the civil rights of one man, Michael Brown, that were allegedly violated, the civil rights of another, Darren Wilson, should have been definitely infringed.

To be sure, despite its apparent justification, there is little to celebrate in the decision not to indict Officer Wilson. Whether his actions were warranted has probably forever vanished into a fog of mixed evidence and ambiguous testimony. The profound culture of mistrust between African-Americans and police in Ferguson—as elsewhere—reflects a deep and continuing racial divide that cannot be wished or refuted away. Frustrations so deep generally do not arise from nothing.

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EPA, the Court, and the Boundary Problem in Administrative Law

Last week, the Supreme Court granted cert in another important administrative law case—yet again involving EPA; yet again arising over the agency’s riff on the Clean Air Act; yet again a Chevron case. After EME Homer City and Utility Air Regulatory Group (UARG) (yet again a petitioner in this case), it’s the third such case to be heard, decided, or granted in a single calendar year. Maybe it’s just the ebb and flow of cases, but a casual survey of the D.C. Circuit’s environmental docket and the EPA’s ambitious plans to rid the galaxy of any chemical whatever strongly suggests that cases of this sort will continue to loom large.

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A Pro-Government Party . . . Versus What?

Immigration Executive Action

Senator Chuck Schumer (D-N.Y.), known for his perceptiveness, ascribed his party’s 2014 defeat to the fact that, since the Democrats are the “pro-government party,” their electoral fortunes are tied to what Americans think about the role of government in their and in the country’s life.

The accuracy of that self-description is beyond question. The Party’s character is set by persons whom Joel Kotkin dubs “gentry liberals”—they hold the commanding heights of government, as well as of cultural and corporate life. They figure prominently, says Kotkin, in the “affluent classes as well as the powerful public sector.”

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Will the FAA Prevent Drones from Getting off the Ground?

Livraisons par drones

Drones provide a paradigmatic example of an accelerating technology. They first appeared in the 1950s, but improvements in computation and automation have made drones far more capable in the last ten years. During that short period, drones have already transformed our air force and are on the cusp of commercialization. More generally, when machine intelligence gets into a space, it relentlessly advances, shaking up the world and creating wealth and opportunities.

How the Federal Aviation Administration (FAA) chooses to regulate drones thus has implications for accelerating technology more generally. And, from what has been published about their proposals, the agency appears to be making a complete hash of the enterprise. Some reports say that commercial drone operators will be required to hold a commercial pilot’s license and thus have experience in manned flight. But the ability to pilot an airplane may be neither necessary nor sufficient to handle drones.

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A National Thanksgiving: President Washington and America’s National Holiday

thanksgiving

Thanksgiving is a peculiar holiday, at least in the modern world.   Its roots are religious, and the American nation is, at least in law, secular.   Its very name speaks of thanks, or gratitude, and gratitude is an ancient virtue.  Indeed Aristotle speaks highly of it.  Even so, or perhaps for that reason, it is very American.  In his Thanksgiving address in 1922, President Coolidge called it “perhaps the most characteristic of our national observances.”   He was not wrong for, as Chesterton wrote, America is “a nation with the soul of a church,” and Abraham Lincoln called us an “almost chosen people.”

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Sexual Assault on the Campus

At present, this is clearly one of the significant issues in the culture wars.  My observation is that the “left” has made significant progress in recent years, spurred by the Department of Education’s actions that have led many colleges to change their standards and by significant discussion in the media about the issue.  The most recent sign of the left’s progress has been the passage of the California affirmative consent statute (about which I previously blogged here and here).

Yet, it is my impression that push back against these policies has begun to grow.  This has been due in part to the reports of a variety of lawsuits, some of them successful, against colleges which appear to have treated male college students without due process.  But it is also due to a statement signed by 28 members of the Harvard Law faculty condemning the Harvard procedures as unfair.  They wrote that:

Harvard has adopted procedures for deciding cases of alleged sexual misconduct which lack the most basic elements of fairness and due process, are overwhelmingly stacked against the accused, and are in no way required by Title IX law or regulation.

Here our concerns include but are not limited to the following:

■ The absence of any adequate opportunity to discover the facts charged and to confront witnesses and present a defense at an adversary hearing.

■ The lodging of the functions of investigation, prosecution, fact-finding, and appellate review in one office, and the fact that that office is itself a Title IX compliance office rather than an entity that could be considered structurally impartial.

■ The failure to ensure adequate representation for the accused, particularly for students unable to afford representation.

Harvard has inappropriately expanded the scope of forbidden conduct, including by:

■ Adopting a definition of sexual harassment that goes significantly beyond Title IX and Title VII law.

■ Adopting rules governing sexual conduct between students both of whom are impaired or incapacitated, rules which are starkly one-sided as between complainants and respondents, and entirely inadequate to address the complex issues in these unfortunate situations involving extreme use and abuse of alcohol and drugs by our students.

Harvard has pursued a process in arriving at its new sexual harassment policy which violates its own finest traditions of academic freedom and faculty governance.

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Accidental Wisdom from the Podium

When questioned recently about the administration’s Ebola response, President Obama’s exasperated White House press secretary, Josh Earnest, proclaimed to a reporter: “I guess you can take that up with James Madison.” Earnest, in his attempt to express the evolving nature of governance in a federated republic, correctly affirmed Madison’s central role in the debate, and directed the thoughtful citizen to appreciate original understandings of power.

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When Deference Is Dereliction

Section 3331 of the United States Code prescribes the oath of office for the House of Representatives. Rep. James E. Clyburn (D-S.C.) has taken it 11 times, which is enough to commit to memory its opening pledge—to “support and defend the Constitution of the United States against all enemies, foreign and domestic; [to] bear truth faith and allegiance to the same.” Anyone who promises to do the same thing 11 times can probably find a shortcut, and Clyburn has evidently identified one: outsourcing constitutional protection to another branch of government.

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The President’s Disregard for Constitutive Norms

Respect for our constitutive system can be as important as positive constitutional law.  Positive constitutional law is written and, if a plaintiff has standing, is likely to be enforced by the judiciary.  Our constitutive system, by contrast, is either unwritten or at least unenforced by the judiciary.  Order in this system is maintained by the statesmanship of the political branches.

Peter Schuck, a supporter of the President and proponent of immigration reform, has ably articulated the problems of the President’s executive order on deportations as a matter of positive law.  But whatever its positive legality, the President’s decision to defer the deportation of millions of undocumented immigrants does not respect our constitutive system.

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