Lawlessness at the Office for Civil Rights – and How to Address It

One of the areas of alleged lawlessness by the Obama Administration has been the Office for Civil Rights of the Department of Education (OCR).  OCR has been pushing the agenda of a rape culture on college campuses.  OCR has used guidances and “Dear Colleague” letters to effectively impose a series of questionable practices on colleges, such as depriving the accused of fair procedures.

There are numerous problems with this agenda.  Some of them are substantive, such as the muddying of the definition of consent.  Some of them are procedural, such as depriving the accused of procedural rights.  But a third set of problems are legal.  The problem is that the rules that OCR is imposing are questionable as a matter of law and have not been tested in the courts.

This is hardly an accident.  The Office strategically imposes these standards through guidances because it knows that it is much more difficult for the guidances to be challenged in court ahead of time. 

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Federalism as a Catalyst for Beneficial Social Change

The question of whether there is a federal constitutional right to same-sex marriage is essentially a debate about whether judges need to update the Constitution to keep step with changing times. Justice Anthony Kennedy appears to be the pivotal vote on the issue.  One observer yesterday summarized what he takes to be the lesson of  his previous opinions on rights: Kennedy “believes that each generation has the right to conceive of newer and broader forms of liberty that merit constitutional protection. He sees history as a guide but not a straitjacket.”

There is no doubt that each generation has the right to conceive of newer and broader forms of liberty. But it does not follow that federal judges should determine what those are. As Mike Rappaport and I have noted, the Constitution accommodates social change through features other than judicial updating. The most important such method is federalism. The states themselves have few restrictions on their powers.  Their experiments to address social change can be readily adopted by other states in a continental republic with a free press.

Federalism in the modern era has been a great catalyst for freedoms.

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Vote Loony, The Time Is Now

Beautiful view of Westminster by night

As the U.S. Supreme Court prepares to give the Let’s-Make-It-Up Clause a full workout, let’s talk about something completely different: the upcoming elections. Not ours, eighteen-plus months hence—the Brits’. The campaign over there has been under way, in a serious fashion, for six weeks or so; it’ll be over in less than another fortnight.

The rather more compressed time frame of elections over there suggests (to anyone except campaign consultants and “democracy” enthusiasts) that Britain’s parliamentary system is superior to our presidential-plus-primary system, at least on this margin. The question whether parliamentary government is generally better has been the staple of a vast body of literature—including, recently, my colleague Francis H. Buckley’s emphatic defense of his native Canada’s parliamentary system.

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When Is “the Law” Violated Under the Constitution, Anyway?

Supreme Court of United States

Recently a New York Times headline blared: “McConnell Urges States to Defy U.S. Plan to Cut Greenhouse Gas.” It was the first in a barrage of mainstream media stories to the same effect. Majority Leader Mitch McConnell (R-KY) was telling the states to violate the law! An apalled ranking environmental committee Senator Barbara Boxer (D-CA) said she could not recall another top politician actually “calling on states to disobey the law.”

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Economics in One Popular Culture Lesson: A Discussion with John Tamny


John Tamny comes to Liberty Law Talk to discuss his excellent new book Popular Economics. Many will recall the first time they read Hazlitt’s Economics in One Lesson. That book’s clear prose and striking examples provided a foundational introduction to free markets. But, as is often true, our practices are better than our theories. We instinctively grasp economics in our daily habits and choices but misunderstand the conditions and principles that support economic growth. Americans are confused about inequality, trade deficits, antitrust policy, fiscal policy, minimum wage, job creation, etc, despite pursuing their own economic self-interest without much thought. Dispelling such…

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Lego-block Hopes and Reign of Terror Dreams


The first thing we do, let’s kill all the lawyers. Or all the noblemen. College professors. People with glasses. Kulaks. The petty bourgeoisie. Any kind of bourgeoisie, for that matter. Perhaps some of them do not entirely deserve it, considered under an abstract concept of justice. But we do not live, you and I, in any world of abstraction. We live in the hard materiality of social economics, and humanity is suffering. The ground must be cleared, even if some flowers are ploughed under with the weeds. Even if some wheat is lost with the tares.[1]

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Judicial Variations–Jurisprudes, Ideologues, and Partisans

There are three paradigmatic types of Supreme Court justices—the jurisprude, the ideologue, and the partisan. While no actual Supreme Court justice perfectly represents the ideal, some present pretty close approximations. It is hard to understand or predict the results of Supreme Court cases without determining how a particular justice fits into these types.

The jurisprude is a justice committed to a particular method of judging rather than an particular set of results. On the current Court the examples par excellence are Justices Antonin Scalia and Clarence Thomas who are committed to originalism. From the past Justice Hugo Black was a textualist and Felix Frankfurter, his sparring partner, advocated an historical jurisprudence. These jurisprudential commitments frequently lead to unusual ideological results. Justice Scalia (and Justice Thomas as well) vote for criminal defendants based on their close readings of  the language of the Constitution, like the Confrontation Clause. For originalist reasons, Justice Thomas is no friend of preemption claims with the result that in his opinions businesses often lose to state tort law and regulation. Despite being a New Deal populist as a Senator, Black as a Justice wanted to enforce the Contract Clause against debtors.

The ideologue is a justice who is strongly right or left of center as that is defined in his day and votes that way.

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Weekend with Mitch


Mitch Daniels’ attempt as president of Purdue University to define the leading edge of higher education reform is prominently featured by the Wall Street Journal this weekend. The full interview is definitely worth reading. Carrying over from his success as Governor of Indiana is his focus on wringing as much productivity and efficiency from each dollar spent and each bureaucracy operating.

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Justice Scalia’s Worst Opinions

Justice Scalia testifies on Capitol Hill in Washington

Recently, there has been some discussion, by admirers of Justice Scalia, of what is the Justice’s worst opinion.  Mike Paulsen argues it is Employment Division v. Smith, where Scalia for the Court interpreted the Free Exercise Clause to provide less protection for those who seek religious exemptions from general laws.  Mike Ramsey mentions both Whitman v. American Trucking (expansive view of Congress power to delegate to the executive) and Gonzales v. Raich (expansive view of Congress necessary and proper power) as possibilities.

Scalia’s views on the nondelegation doctrine are potentially important.  While the justices on the right have supported limits on Congress’s commerce power, there has been no similar efforts as to Congress’s power to delegate.  There are several reasons for that but one important reason is that Scalia would not have gone along.

In my view, though, Scalia’s worst opinions are his series of opinions defending the Chevron doctrine.  There is a reasonable argument that if Scalia had not been on the Court, the High Court would never have adopted the broad Chevron doctrine.  The Chevron decision itself, written by Justice Stevens, was probably never meant to have adopted the broad rule of deference that it has become.  Instead of adopting a categorical rule that required deference to agencies for both pure questions of law and mixed questions of law and fact, it was probably intended merely to hold that the particular statute at issue in that case – the Clean Air Act – allowed the executive deference as to the particular type of decision in that case.

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Legal Education Better Call Saul  

Breaking Bad (Season 4)

This site features an excellent Liberty Forum discussion this month on the future of legal education. If Ken Randall is right about a “blue ocean for law schools” (and he probably is), it looks like a lot of them will be traveling online, providing a needed service for those who only want a ticket to take the bar. As the profession gets more entrepreneurial, the argument for taking this route gets stronger.

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