The Descent Into Quasi-Law

Lawyer And The Law

“Stroke of a pen . . . law of the land. Kind of cool.” That insouciant comment, made by Paul Begala when he worked in the Clinton White House, raised controversy when Begala said it back in 1998, but it hardly would today.

After all, just in the past few weeks we have discovered that President Obama plans to sign, on his own authority, an international “climate change” treaty. He calls it an executive agreement and so claims he needs no congressional approval, even though his administrators will use the treaty to impose new policies and rules binding American individuals, governments, and businesses to change their behavior on pain of federal sanction.

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A WSJ Ranking of Law Schools Would Improve Legal Education

The Wall Street Journal in partnership with the Times Educational Supplement has just released a ranking of colleges. It provides a useful corrective to the more famous rankings by U.S. News and World Report, because it focuses more on the student outputs rather than inputs. That is, while U.S. News heavily weights the credentials of incoming students, such as the SAT scores and high school grades, the Wall Street Journal weights the outputs, like student satisfaction and salaries earned at graduation. This ranking system also appears to take a more quantitative approach to the quality of the faculty, relying less on reputation and more on actual research output.

It would be hugely beneficial for legal education, if this consortium were to undertake similar rankings of law schools. It would undermine the unhealthy power of US News’ ranking of law schools, which, as with colleges, focuses more on student inputs than outputs. For instance, US News’ only reliable student output measures are bar passage rates and employment statistics. These are blunt measures: a job paying $40,000 counts as much as one paying five times much. In any event, they count for only a relatively small part of the total ranking.

It is true that US News also assesses the reputation of the school among judges and practitioners, but that reputation at least partially reflects their views of law schools at the time they were students with the result that there is only glacial change over time.  And the reputation of faculty as determined by law professors  is similarly backward looking and difficult to change.

As a result, law school deans are more obsessed with student inputs than outputs as the key to improving their US News ranking, even though it is outputs that count for students and it is outputs that educational institutions are in the business of improving.

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The Need for a Decentralized Police

Riot police

Why can’t police chiefs speak the truth? We all know why—because the 24/7 media blob would destroy them for their political incorrectness.

Fortunately, chiefs ultimately retire and can be more forthcoming.

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Don’t Thread on Me

The Texas Supreme Court’s 2015 decision in Patel v. Texas Department of Licensing and Regulation, striking down a state law requiring at least 750 hours of training in order to perform commercial “eyebrow threading”—a form of hair removal mainly performed in South Asian and Middle Eastern communities—has generated substantial notoriety for the court and for the Institute for Justice, which brought the lawsuit challenging the law.

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The Sum of Social and Political Evil


The New Trail of Tears opens with the question, “What does America owe Indians?” and closes with the response, “To make them equal Americans.”

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The U.S. Commission on Abolishing Religious Freedom


The embarrassing U.S. Commission on Civil Rights richly deserves the new name bestowed on it by the above headline. Its recent report to President Obama, “Peaceful Coexistence: Reconciling Nondiscrimination Principles with Civil Liberties,” contains nothing that is remotely likely to promote either peace or coexistence. To the contrary.

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Clinton’s Idea of Justice Is My Idea of Theft

It is a theme of fiction: when someone dies, people line up to steal from him or her—estranged relatives and strangers alike. The deceased cannot protect himself. This is a reason that we should expect that death may be a time for the state to work some injustice too.

Thus, we should begin with a healthy suspicion of a tax levied at death. Hillary Clinton’s recent call for a 65 percent federal tax on large estates signals to Bernie Sanders supporters her Leftwing bona fides, but it should signal to the rest of us her lack of a sense of justice. When one adds in taxation from states like New York, the government could then confiscate more than four-fifths of a decedent’s property.

To be sure, our basic intuitions about justice are often hard to justify, but there seems to be a large difference between taxing people’s income at a reasonable rate and taking a large portion of their assets. We think of income as a flow, into which the government may dip, whereas assets constitute a fixed bedrock that is wholly our own.

Our difference in intuition about assets and income might suggest that all estate taxes are unjust. But one plausible justification for sound estate taxes is that they can be a proxy for other uncollected income taxes.

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Constitutional Change, Article V, and the Presidential Election

Recently, I did a podcast interview on Constitutional Amendments and the Presidential Election.  The interview, which was conducted by the National Constitutional Center, also featured David Strauss of the University of Chicago.  Jeff Rosen, the President of the National Constitution Center and a Professor at George Washington Law School, was the interviewer.

It was an interesting discussion, which focused both on the constitutional amendment process and the impact that Hillary Clinton and Donald Trump might have on constitutional change if they were elected.

It was fun discussing these issues with David Strauss, because his views are so diametrically the opposite of mine.  Many nonoriginalists resist being described as living constitutionalists.  Strauss embraces it.  He takes the opposite position of mine on a whole range of specific issues, which follows from his more general approach.

Strauss believes two main things about constitutional change.  First, he claims that the actual practice of constitutional change occurs through judicial decisions and other governmental actions.  In fact, he believes that constitutional amendments are largely irrelevant.  Second, he believes that constitutional amendments are not generally a good way generally of changing the Constitution.  The way that is actually practiced – where judges follow a common law like system – is better.

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What Do These Two Think About the Office to Which They Aspire?

Andrew Harrer/Bloomberg via Getty Images

Presidential debates neither are nor ought to be midterm exams. The people who administer midterms do not necessarily possess political wisdom (see “Wilson, Woodrow”), and the people who excel at taking them may be better at demonstrating technical detail than prudential judgment (see above). Thus questions that make a candidate stumble—and that can win the journalistic brass ring for the moderator, namely, instigating news—tend not to be as valuable as those that prompt reflection and reveal a mind at work.

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Loyalty and Liberal Constitutionalism

We The People - U.S. Constitution document and flag

I have returned to the mothership after a great trip to Worcester, Massachusetts earlier this week to speak at Assumption College for its Constitution Day event, albeit a few days after September 17th. The students and faculty at the event were excellent. I thought it worth mentioning that the students in attendance were fundamentally sound in mind and not overwhelmed with ideological convictions, which proved excellent for the talk I delivered. In short, there’s a solid liberal arts tradition at Assumption. And that’s all to the credit of the faculty. If you’re looking for an education in the Humanities for yourself or for a son or daughter, then I would urge considering Assumption. They also permitted me to indulge in a bit of an off-road lecture on Orestes Brownson’s case for political loyalty as the crucial underpinning of our constitutional order. Many thanks to Prof. Bernard Dobski, Chairman of the Political Science Department, for the invitation and to Brother Greg for a wonderful introduction. My talk is below:

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