Liberty Law Blog

More on Originalism and Same Sex Marriage: A Response to Mike Ramsey

by Mike Rappaport / 0 Comments

Filed Under: ,

Print Friendly

My position on the constitutional question of whether gay marriage is required is that there are reasonable interpretations on both sides of this issue.  One danger of such a position is that it puts one in a no win position, but – hey – you have to go where the evidence leads you.  Mike Ramsey (with arguments I mainly agree with) has been responding to critics of the argument that the 14th Amendment does require same sex marriage.  Here I want to respond to Mike’s criticisms of the arguments that I offered for why one might conclude that same sex marriage is not required.

Mike focused on one small part of my post addressing the issue whether sexual orientation is like race.  Rather than get into this issue – perhaps I will in the future – I want to note that Mike fails to address the basic question as to how we identify what moral rules are sufficient for justifying the law drawing a distinction under the 14th Amendment.  This is a potentially independent reason for not requiring gay marriage.  I had noted that at the time of the Amendment traditional moral rules would have been deemed to be a sufficient basis for a law to draw a distinction.  (Under one theory, a law that drew a distinction based on traditional morality would not be seen as class legislation.) Continue Reading →

States on Drugs and the Net

by Michael S. Greve / 0 Comments

Filed Under: , ,

Print Friendly

Any federal system will have to live with frictional losses and transaction costs, on account of the difficulty of deciding out what belongs to which state and who can tax or regulate what to whom. We decide to bear those costs because they are outweighed, or so we hope, by the benefits of competition (relative to a fully nationalized system). There remains the task of figuring out and enforcing rules that will minimize the friction and make competition thrive. We are lousy at that—not because the right rules are terribly complicated, but because they would do what they’re supposed to do: discipline government at all levels.

Yesterdays’ Wall Street Journal has two pieces that illustrate the point: an article on state lawsuits over the marketing of pharmaceutical drugs, and another on Senate action on internet sales taxes. There’s also an op-ed by eBay CEO John Donahoe on the subject. Continue Reading →

“The Big Bang Theory” Meets Its Maker

by Ken Masugi / 15 Comments

Filed Under: , , , , , , , ,

Print Friendly

Normal
0

false
false
false

MicrosoftInternetExplorer4

/* Style Definitions */
table.MsoNormalTable
{mso-style-name:”Table Normal”;
mso-tstyle-rowband-size:0;
mso-tstyle-colband-size:0;
mso-style-noshow:yes;
mso-style-parent:”";
mso-padding-alt:0in 5.4pt 0in 5.4pt;
mso-para-margin:0in;
mso-para-margin-bottom:.0001pt;
mso-pagination:widow-orphan;
font-size:10.0pt;
font-family:”Times New Roman”;
mso-ansi-language:#0400;
mso-fareast-language:#0400;
mso-bidi-language:#0400;}

v\:* {behavior:url(#default#VML);}
o\:* {behavior:url(#default#VML);}
w\:* {behavior:url(#default#VML);}
.shape {behavior:url(#default#VML);}

Normal
0

false
false
false

MicrosoftInternetExplorer4

st1\:*{behavior:url(#ieooui) }

/* Style Definitions */
table.MsoNormalTable
{mso-style-name:”Table Normal”;
mso-tstyle-rowband-size:0;
mso-tstyle-colband-size:0;
mso-style-noshow:yes;
mso-style-parent:”";
mso-padding-alt:0in 5.4pt 0in 5.4pt;
mso-para-margin:0in;
mso-para-margin-bottom:.0001pt;
mso-pagination:widow-orphan;
font-size:10.0pt;
font-family:”Times New Roman”;
mso-ansi-language:#0400;
mso-fareast-language:#0400;
mso-bidi-language:#0400;}

v\:* {behavior:url(#default#VML);}
o\:* {behavior:url(#default#VML);}
w\:* {behavior:url(#default#VML);}
.shape {behavior:url(#default#VML);}
“The Big Bang Theory” is a highly popular tv sitcom focusing on the love and social lives of young Caltech scientists and their glowingly attractive next-door neighbor, part-time actress and Cheesecake Factory waitress Penny. Now nearing the end of its sixth season, the show would appear to garner its popularity from its depiction of the resolute nerdiness of its brilliant theoretical physicist and engineer characters and their helplessness before the earthy Penny. Their personal lives are shallow at best, obsessed with comic book heroes and Star Trek characters.[i] Continue Reading →

Advance PR: New Book

by Michael S. Greve / 1 Comment

Filed Under: , , , ,

Print Friendly

So I have a new book(let) out. It’s called The Constitution: Understanding America’s Founding Document (American Enterprise Institute/Rowman & Littlefield, 2013).  I wouldn’t hold it out as a scholarly accomplishment; it’s not meant to be. The book is part of AEI’s well-conceived Values & Capitalism Project, which (among other things) publishes short, understandable books, targeted primarily at an audience of college students, that address matters of public concern—economics, social policy, American history and exceptionalism, etc. The Project has produced several terrific books. (My personal favorite is Alex Pollock’s Boom and Bust, containing much wisdom and insight on financial cycles.) Now this.

Predictably, The Constitution riffs on some of the themes of The Upside Down Constitution. On that account, my beloved daughter (a college senior who kindly reviewed the manuscript for suitability) suggested “Dad for Dummies” as a title, along with a yellow cover. But that’s not quite fair. Flipping through the text now, it actually strikes me as quite demanding, at least for folks who don’t live and breathe ConLaw.  Plus, given its overview-ish purpose, the booklet covers additional topics, from judicial review to slavery to the administrative state.

Over the comings weeks, AEI will put its considerable marketing muscle and prowess behind the product. (There’ll even be an animated video.) Still, I’m doing my small part. Get The Constitution from Amazon or AEI, and take a look: it might be useful to students entrusted to your care and instruction.

Assuming, without adequate foundation, that you trust the author.

A World Without Chevron

by Mike Rappaport / 0 Comments

Filed Under: ,

Print Friendly

Let me complete my set of posts on Chevron by explaining what legal doctrine would look like without Chevron.  Chevron was justified in part based on the view that the prior doctrine was a mess because it left no guidance as to whether deference would be given to an administrative agency in any specific case.  That Chevron has turned into a doctrine with tremendous uncertainty is both ironic and another reason not to like it.

There are two possible doctrines that would replace Chevron.  The first is simply not to confer deference on an agency unless there is a clear indication from Congress that such deference was intended.  Thus, if Congress specifically provided for such deference then the courts should confer it.

An example of this comes from the Fair Labor Standards Act, which exempted “outside salesman” from the overtime provisions of the Act.  Significantly, Congress did not definte the term outside salesman, but delegated authority to the Department of Labor to issue regulations “from time to time” to “define and delimit” the term.  Congress here was clearly allowing the agency to determine the scope of the term.  But in the absent of such an explicit provision one would not infer any deference for the agency. Continue Reading →

A Constitution for All Seasons

by Greg Weiner / 1 Comment

Filed Under: , ,

Print Friendly

If Senators John McCain, Lindsey Graham and Kelly Ayotte as well as Rep. Peter King are unwilling to grant Dzhokhar Tsarnaev a presumption of innocence in the Boston marathon bombing, perhaps they might be willing to start the debate surrounding the terms of his detention with a presumption in favor of the Constitution instead: namely, that our founding document, cumbersome protections and all, is sturdy enough to protect the nation even in cases of the most heinous and outrageous acts and the gravest enduring dangers.  Continue Reading →

The Nontextual and Made Up Chevron Doctrine

by Mike Rappaport / 2 Comments

Filed Under: , ,

Print Friendly

In my last post, I discussed how the Chevron doctrine – which grants administrative agencies the power to choose any reasonable interpretation of statutes that they administer – allows agencies additional legislative power and therefore exacerbates the combining of legislative and executive powers of the administrative state.  Here, I want to explain why the doctrine is made up and nontextual — and therefore should never have been endorsed by Justice Scalia.

As the Court freely admits, the Chevron doctrine does not emanate from any statutory text.  It is an inference – I would say an assumption – that the Court makes that any ambiguous language was intended to delegate to the agencies.  But as the Chevron case itself admitted, this assumption is not necessarily grounded in Congress’s intent.  When Congress uses ambiguous language, there are many reasons why it might have done so other than intended to delegate the power to resolve that ambiguity to an administrative agency.

Textually, nothing in these statutes says that the agencies should resolve the ambiguity.  Instead, there is an applicable text that speaks to the issue – and says that there should be no deference to the agency.  The Administrative Procedure Act, passed in 1946, states that a reviewing court should “decide all relevant questions of law.”  It does not state that it should leave those questions to agencies. Continue Reading →

When Compassion Reigns

by Theodore Dalrymple / 5 Comments

Filed Under: , , , , , ,

Print Friendly

The picture of the little boy killed by one of the bombs in Boston has gone round the world and is particularly poignant. How could anyone have done such a thing to so innocent a child? This is a natural emotional response.

But is it a morally appropriate response, however natural it might be? I am not sure that it is; indeed, it could almost be, indirectly and unintentionally, of assistance or comfort to terrorists. Continue Reading →

Standing with Erasmus, Undaunted

by Richard Reinsch / 4 Comments

Filed Under: , , , , , , ,

Print Friendly

It all started during a golf outing on the plush courses of northern Maine (summer, I presume) among Bowdoin president Barry Mills and Thomas Klingenstein, Chairman of the Board of Directors of the Claremont Institute, that I guess Mills would like to have back. That day at the links, or rather Mills’ public recollection of it, launched a National Association of Scholars’ 363 page study of the curriculum and education offerings of Bowdoin College. Continue Reading →

Friday Roundup, April 19

by Richard Reinsch / 0 Comments

Filed Under: , ,

Print Friendly

None of Britain’s future options are easy, argues Charter. Without declaring a preference for any one of them, he leaves it clear that, in his opinion, Britain must shortly leave the EU, but that there will be life after its doing so, albeit probably a slightly less prosperous one than it might otherwise have enjoyed had it remained a member.

  • The real costs of college group-think: Judith Grossman, an attorney in New York, writes in the Wall Street Journal this week about the show trial her son endured on campus because of a bogus sexual assault allegation by a former girlfriend that allegedly happened years earlier. Her son was presented with no evidence, no specific allegations, or allowed to confront his accuser or other “witnesses.” The standard of guilt for this crime owing to the Obama Department of Education’s Office of Civil Rights is preponderance of the evidence or 50% + a whisper. Yes, you read that right. Why are college panels trying these cases to begin with? DOE tied the implementation of these changes for conviction (50% and a whiff) to a college campus’ continued receipt of federal funding. Practical. Grossman’s son had a lawyer mother with means who protected him. It goes without saying that many others will not be so fortunate. Harry Lewis and Jane Shaw have a similar report @UNC. Apparently, it’s no good for the accusers either.

Beyond making clear that “mere corporate presence” in the United States will not suffice, the Chief Justice’s opinion observes that “even where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application.” That observation (and its supporting citation) ought to signal that there will not be ATS jurisdiction over claims based predominantly on, or focused on, foreign conduct, but future cases will have to sort out the precise lines.

  • New Fed Soc operation: Executive Branch Project. This is greatly needed. I look forward to many excellent contributions.
« 3 4 5 6 7 8 9 10 »