Why Can’t a Man Be More Like a Woman?

In My Fair Lady (based on George Bernard Shaw’s Pygmalion), Professor Higgins asks why can’t a woman be more like a man?  But these days, the sentiments underlying that question are more likely to be reversed.

In this article, a 50 year old woman laments the behavior of men.

There seems to be a gender imbalance, vis-a-vis [appearance]. All the women I know are tolerant of middle age showing itself in a chap. We quite like a late flowering, in fact: the silvering, the smile lines, the coming of bodily sturdiness.

By contrast, she notes that 50 year old men favor younger females:

It’s true that men don’t see me any more. It’s sobering to walk down the street observing how the 50-year-old men behave, paying attention to what they’re looking at as they stroll along. They are not looking in shop windows. They are not looking at me. They are looking at women half their age.

The suggestion is that men are somehow more superficial and really inferior.  Women are after substance; men are after looks.  And so, why can’t men be more like women?

But this story is a mirage – a false tale that our age seems to repeat.

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Trust Us, We’re the IRS

IRS

I am a faithful subscriber to the Washington Post: morning after morning, it makes for merriment. Its editorial and op-ed pages, for instance, have been given over for weeks to the regurgitation of ACA defenses cranked up in New Haven or in the PR offices of the country’s health care lobbies (interspersed with an occasional George Will column). Then yesterday, the Post (printed version) conveniently supplied a long piece detailing “Five Myths About King v. Burwell”—written by a pro-ACA advocate in the litigation, who nonetheless earnestly professed to sort “fact from fiction” in the case. That was a good one.

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The Political Thought of Walter Berns

walter-berns

The death of Walter Berns (1919-2015) has deprived this country of a patriot both remarkably devoted and remarkably thoughtful. He was a thinker resolutely loyal to, yet resolutely reflective about, the United States. These two qualities were also characteristic of Walter as a person and as a friend.

Among the numerous subjects that this political theorist addressed, I am selecting for special (though far from exhaustive) attention these: constitutionalism, patriotism, punishment, public morality, civic education, and religion. How, and to what extent, has he illuminated these subjects? How consistent are his viewpoints regarding them, advanced in various contexts over many years?

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We Grow More Equal as Technology Dematerializes the World

Futuristic smart glasses

At this year’s Federalist Society student symposium Richard Epstein and I spoke on a panel on Innovation and Inequality.  We agreed that the innovation created by capitalism has hugely benefited the poorest in society.  We disagreed over the extent to which the very nature of modern innovation itself has a tempering effect on inequality.

In my view, modern innovation helps reduce real inequality both around the globe and in the United States. And it does so for fundamental reasons. Information technology creates value by better arranging material resources.  And because of the nature of our accelerating technology the know-how for such information technology rapidly becomes common property benefiting everyone.

Another way of putting this point is that modern information technology dematerializes the world and thus democratizes it, because it is material things that are scarce. The move from its to bits is also a move to equality, because bits can be enjoyed by the many simultaneously. Income inequality gives a misleading picture because we all enjoy the benefits of a growing pool of expressions of ideas.

Let me give some concrete examples. Watson, the machine that beat the best players at Jeopardy, is going into medical diagnostics.

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Character, Controversies, and Kill Zones

in bilico

It is as if the stars in the heavens were faltering in their orbits. One media icon is down; another has been damaged. “Bill O’Reilly Has His Own Brian Williams Problem,” blared the headline in Mother Jones magazine. The Fox News Channel host stands accused of recounting “stories about his own war reporting that don’t withstand scrutiny.”

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Federal Preemption: The Numbers

The federal preemption of state law is a subject that only dorks could love. Four of them (Jon Klick, Mike Petrino, J.P. Sevilla, yours truly) have just published an empirical analysis of preemption decisions in the Rehnquist and the Roberts Courts. Preemption is the Supreme Court’s daily diet, with three or four cases each Term. So you can actually do the numbers. What the numbers show is that the once-humdrum preemption issue has become a matter of intense ideological contestation.  Preemption cases are less likely to be (nearly) unanimous than the general run of decided cases; and in contested cases, the…

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Article III’s Case-or-Controversy Requirement: The Original Meaning

Another of the papers held at the Works-in-Progress Conference at the Originalism Center at the University of San Diego this past weekend was The Contested History of Article III’s Case-or-Controversy by James Pfander of Northwestern University Law School.  Pfander’s paper provides evidence that early Congresses authorized and courts allowed lawsuits that do not seem to satisfy the modern Article III doctrine in terms of injury in fact and adverseness of the parties.  (While Pfander’s paper is not yet available online, a longer related paper is.)

One of Pfander’s examples is the naturalization proceeding that involved an action by an individual in court seeking citizenship.  The government was not a party to the proceeding.  According to Pfander, this proceeding does not involve an injury in fact and does not involve adverseness.  It does not involve injury in fact, because the applicant for citizenship has not been denied his citizenship by the government.  He is simply applying for it in court.  It does not involve adverseness because the government has not taken an adverse position to the applicant for citizenship.  The government is not involved. Other noncontentious proceedings included administrative proceedings in bankruptcy jurisdiction and ex parte warrant applications.

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Should the Federal Reserve Be Free of Supervision While It Carries Out Vast Monetary Experiments?

fed

The “Audit the Fed” proposal of Senator Rand Paul (R-Ky.) elicits a surprising amount of emotion, from opponents and supporters alike. Why should this be?

“Monetary policy” purposefully sounds technical and dull—you like it that way if you want to keep it the domain of supposedly objective experts who don’t want any mere politicians interfering in their elite central banking club. But money affects everybody and is an emotional topic, especially if the Fed is on purpose crushing you, as it currently is doing to savers, in order to benefit borrowers and speculators.

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Burke, Historical Experience, and Change

At the Federalist Society national student symposium, my colleague Josh Kleinfeld was the deserving recipient of the Paul Bator Award given to an outstanding law professor under 40. His beautiful acceptance speech focused on the importance of Burkean conservativism.  And Kleinfeld is correct: the right owes an enduring debt to Burke’s skepticism of ordering society according to the abstractions of the kind advocated by the French philosophes. That debt is all the greater, now that these types of philosophes have gone global.

But I do wonder whether one aspect of Burkean conservatism—deference to past historical experience—deserves quite as much weight today as it once did.  Burke had both religious and more instrumental reasons for valuing that experience. For Burke, history was “the known march of the ordinary providence of God.” More secularly, it was also the best repository of human prudence and wisdom and thus the best guide to policy in an uncertain world.

But the value of historical experience as a guide for policy depends on the technological and social rate of change and on the availability of alternative methods of sifting experience.

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Judicial Activism Isn’t the Remedy Publius Prescribed: A Reply to Evan Bernick

philo-publiusTo gauge how carefully they have read Federalist 10, I often ask students on what constitutional institutions Madison relies to solve the problem of majority factions. It’s a trick question, the last refuge of the professor. The answer is none. Madison reaches the end of the essay, proclaiming a “republican remedy for the diseases most incident to republican government,” without mentioning the Constitution, a Bill of Rights or, significantly, the courts.

That has not dissuaded advocates of an assertive judiciary from quoting Madison on the “mischiefs of faction” to support their cause. The most recent is Evan Bernick of the Institute for Justice, who, at the Huffington Post, has taken my post on judicial restraint to pointed task. “Professor: Who Needs Judges?” the headline announces. “Let’s Put Our Constitutional Rights to a Vote.”

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