Freedom, Baby

UK Independence party leader Nigel Farage (R) and Labour party MP Kate Hoey accompany a Brexit flotilla on the river Thames. (BEN STANSALL/AFP/Getty Images)

There has been a great deal of negativity directed at the idea of a British exit from the European Union. The campaign against Brexit headed by Prime Minister David Cameron, in conjunction with the Labour Party leader and the chief Liberal Democrats serving in Parliament, has been dominated by dire warnings of falling living standards and economic calamity at home, to predictions of greater instability and even war in Europe, should the United Kingdom leave the EU.

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Delegation, Unilateral Executive Authority and the Decline of Democracy

In a recent post, I discussed how Cass Sunstein argued, with the aid of the Star Wars saga, that delegation to the executive could be dangerous to democracy.  While Posner and Vermeule contend that democracy favors delegation, because the democratic legislature has chosen to delegate, Sunstein notes that delegation can lead to the end of democracy, as it allows the executive to permanently displace the legislature.  This was the case with Emperor Palpatine and with Adolph Hitler, both of whom received delegations of authority that they used to rule and never allowed the legislature to take back the authority.

Sunstein notes that George Lucas, the principal author of Star Wars, had analyzed the declines of democracies.  According to Lucas, “You sort of see these recurring themes where a democracy turns itself into a dictatorship, and it always seems to happen kind of in the same way, with the same kind of issues, and threats from the outside, needing more control.  A democratic body, a senate, not being able to function properly because everybody’s squabbling, there’s corruption.”

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Persecution and the Art of Voting

Police officers look towards a crowd of protesters near a Donald Trump rally in San Jose, California on June 02, 2016. (JOSH EDELSON/AFP/Getty Images)

Persecution, and the fear of it, are the underlying theme of this year’s presidential election. You can see it everywhere.

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A Jurisprudence of Empathy Undermines the Rule of Law: Sotomayor Edition

Last week brought more evidence that a jurisprudence of empathy completely undermines the rule of law.  Recall that President Obama, the most famous advocate of this kind of  jurisprudence, suggested that empathy would make a difference in only a relatively few cases, because it had no role to play when the law was clear. I have previously suggested that empathy does not even help resolve those cases, because it’s almost always possible to have empathy for both sides. But Justice Sonia Sotomayor, his first Court appointment, shows that jurisprudence of empathy cannot be limited to hard cases. Instead, it leads her to disregard clear law in the cases that most tug at her heart.

The latest example comes in Puerto Rico v. Franklin California Tax-Free Trust.  There the Court held that Puerto Rico could not create a bankruptcy law to govern the debts of its public utilities, because it was prohibited by the plain language of the federal bankruptcy act from creating its own bankruptcy law. Puerto Rico attempted to evade this prohibition by noting another provision of the bankruptcy code: “The term ‘State’ includes the District of Columbia and Puerto Rico, except for the purpose of defining who may be a debtor under chapter 9 of this title.” (emphasis added).

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Net Loss: D.C. Circuit Upholds FCC “Net Neutrality” Rule

FCC

In a momentous decision, a panel of the D.C. Circuit (Judges Srinivasan, Tatel, and Williams; opinion by Srinivasan, partial dissent by Williams) has upheld the FCC’s “net neutrality” rule. Henceforth broadband providers will be regulated not as information providers but as a “telecommunications service” under Title II of the Communications Act. Among other things this entails “must carry” obligations and a command that the providers may not charge different rates to different content providers (in regulatory parlance, “paid prioritization”).

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Thought Experiment – Transcript of Islamic State National Security Council Meeting 6/17/16

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(Self-appointed) Caliph: I have called you, the members of the IS National Security Council, together today in my bunker to discuss future strategy in light of the Orlando shooting in the US, the growth of right wing nationalist movements in Europe and the US, and our current situation on the ground in Iraq and Syria. Remember, our objectives are first to retain our state and second to expand it. Let’s start with the views of our military chief of staff. How are we doing?

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To Promote Innovation Let Non-Lawyers Earn Income From Legal Services

The rule of law is a great boon to liberty, enabling us to plan our lives.  Making law more transparent and less expensive to use also increases liberty because then more people can take advantage of that stability at lower cost. It is a particular boon to the poor and middle-class who cannot afford high-priced lawyers to help them see through a fog of law.

Fortunately, the ever increasing power of computation is creating new mechanisms to improve access to  law. As I described in my presentation this week at the Organization of Economic Cooperation and Development, machine intelligence is transforming legal practice.  It is making discovery of facts easier through predictive coding, permitting search by semantic concepts rather than just legal terms, generating simple but personally tailored legal documents, like wills and trusts, and helping predict the outcome of legal cases. Discovery, search, document generation, and legal prediction constitute a large part of legal practice.

The single most important structural change to accelerate such innovation is to permit non-lawyers and corporations to earn income from the practice of law—something that is forbidden by ethical rules in all our states.

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The Most Important Person in America

The following post is written by Bill Levin, my friend and former colleague from the Office of Legal Counsel. He has written in this space before.   With fewer than 50 days to the start of the Democratic convention, the legal and political peril of Hillary Clinton has reached its climatic phase. Her career has come full circle, from a staffer in the Watergate proceedings to the lead in Emailgate, with two presidencies in the balance. Prior to the recent State Department IG Report, it was widely believed that Mrs. Clinton could weather the storm. The FBI has avoided official comment, except to call…

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They’re Into Masochism

US Capitol dome detail

Among its myriad other mysteries, the 2016 election presents this Madisonian puzzle: Why are so many members of Congress genuflecting before presidential nominees whose platforms include emasculating them?

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The San Francisco Compromise: A Conversation with Michael Anton

san franThis conversation with Michael Anton explores how the gargantuan wealth of Silicon Valley allied with San Francisco Progressivism and is now redefining American culture and politics. But how durable is the alliance?