Conserva-rrific Liber-lennials

  When a political movement changes labels, that usually means its adherents are unelectable. Take the Democrats in 2004. When the presidential candidacy of Massachusetts Senator John Kerry, a liberal protégé of the state’s senior senator, Ted Kennedy, went down in flames, their party almost immediately switched from the buzzword “liberal” to “Progressive.” Not only was this changing the subject, it was reaching for the latter term’s historically bipartisan connotations. The Democrat Woodrow Wilson had been adapting himself to a doctrine first put into circulation in national politics by a Republican, Theodore Roosevelt. The initiators of the change in emphasis, Democratic consultants Paul…

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The German and Dutch Founding-Era Translations of the Constitution

This past weekend, the Center for the Study of Constitutional Originalism at the University of San Diego held its Sixth Annual Works-in-Progress Conference.  I had thought I might blog about a couple of the papers.

One of the papers – Founding-Era Translations of the Federal Constitution by Christina Mulligan, Michael Douma, Hans Lind and Brian Patrick Quinn – involved the discovery of some new information about the original meaning of the Constitution.  At the time of the Constitution, significant portions of Pennsylvania and New York were respectively inhabited by German and Dutch speaking citizens.  As a result, the Constitution was translated into German and Dutch during the ratification contests in these states and these translations were relied upon by the German and Dutch speaking citizens.

For originalists, these translations represent an important new piece of evidence about the original meaning.  They are in some ways similar to commentary at the time that indicates the meaning of the Constitution.  But the translations differ in that they translate the entire Constitution.  And unlike contemporary dictionaries, the translations are in context – that is, rather than the modern originalist having to consult a dictionary with a number of word meanings, he needs only to review the word that the translator inserted into the specific clause. 

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The Predictably Partisan Kennedy Court


According to our Constitution, the President nominates, and with the consent of the Senate appoints, the judges of the Supreme Court. In only 12 of the last 30 years has a single party controlled the presidency and the Senate; therefore, only during those years has there been (largely) uni-partisan control over the selection of new members of the Supreme Court.

All nine of our justices were appointed during the last three decades. Seven, however, were chosen during those more uni-partisan years. Four were appointed under Democratic dominance: Justices Ginsburg, Breyer, Sotomayor, and Kagan. Three were appointed under Republican dominance: Justices Scalia and Alito, and Chief Justice Roberts.

The other two, Justices Thomas and Kennedy, were chosen by a Republican President and confirmed by a Democratic-controlled Senate. In Justice Thomas’s case, his 52 to 48 confirmation vote was nearly uni-partisan—and bitterly so: a handful of conservative Democrats, including future Republican Richard Shelby of Alabama, joined nearly all Republicans in (barely) consenting to Thomas’s appointment. Justice Kennedy, in contrast, was nominated by President Reagan but then unanimously endorsed by the Democratic majority in the Senate. In this respect, his appointment was peculiarly and distinctively bipartisan.

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Share–and Care–Alike

In the sharing economy, companies like Uber, Lyft, and Airbnb, add value by using resources that would otherwise be idle.  The Internet connects people who need transportation or accommodations with people who are willing to provide them. Another substantial advantage is that these same connections permit social norms rather than government regulation to enforce standards of good conduct.

Government has a model for regulating taxis. It generally requires substantial licensing and enforces rules by tracking complaints and disciplining drivers found in violation. But a company like Uber makes much of this regulation unnecessary. First, given its substantial capital investment, it has every interest in checking out drivers itself before it permits them to represent its good name.

But Uber also makes use of social media to assure continuing good behavior of its drivers.

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Flowers and Headscarves, Oh My!

Abercrombie-Headscarf Firing

Have you heard the one about the Christian florist who declined to sell flowers for a gay wedding? She got sued by the Washington AG and by the ACLU. In a 60-page opinion, a state judge ruled against her. The florist is appealing. Also, she has since stopped selling flowers for any kind of wedding, lest “discrimination” break out yet again.

Have you heard the one about the young lady who showed up for a job interview with Abercrombie & Fitch wearing a black headscarf? You will: her fate is at issue in Equal Employment Opportunity Commission v. Abercrombie & Fitch, pending before the Supreme Court. Abercrombie’s strict regulations of its floor “models’” attire and appearance include a prohibition against headgear.

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James Buckley at 90: Still a Hero of the Republic

I had the good fortune to be asked to review Saving Congress from Itself by James L. Buckley, a statesman I have long admired.  As I say in the opening of the review that appears in this week’s print edition of National Review: My first vote remains my best. It was for James L. Buckley’s reelection as a United States senator from New York. In six years in office, he had shown himself fearlessly principled, whether in calling for Nixon’s resignation in the Watergate scandal before any other conservative in Congress or in opposing a taxpayer bailout for New York City,…

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Putin’s Russia: A Conversation with Karen Dawisha


If there was any hope left that a Putin-led Russia might still transition to a democracy with a stable rule of law and truly independent civil society, Karen Dawisha’s Hayek Book Prize nominated Putin’s Kleptocracy would seem to have squashed it. Indeed, Dawisha argues that Putin basically rules through and with a criminal conspiracy whose goals are to “control privatization, restrict democracy, and return to Russia to Great Power (if not superpower) status.” She cites as powerful evidence the penalties imposed by the United States in April 2014 following the Russian invasion of Crimea. The American government didn’t primarily target…

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The Lawgiver


Washington's_Farewell_AddressGeorge Washington provided explicit direction for biographers and analysts seeking to capture the substance of his public service. In his September 1796 “Farewell Address,” he wrote:

Though in reviewing the incidents of my Administration, I am unconscious of intentional error, I am nevertheless too sensible of my defects not to think it probable that I may have committed many errors. Whatever they may be I fervently beseech the Almighty to avert or mitigate the evils to which they may tend. I shall also carry with me the hope that my Country will never cease to view them with indulgence; and that after forty five years of my life dedicated to its Service, with an upright zeal, the faults of incompetent abilities will be consigned to oblivion, as myself must soon be to the Mansions of rest.

As we can see, Washington identified as the term of his service to the United States, a continuous period dating from 1751 to 1796. Every Washington biographer inherits an obligation to tell the story at least with reference to that “body of work,” if not comprehensively reproducing it. To date, no one has presented that coherent account (including the present author). But Edward J. Larson has taken large strides toward compensating for the lack with The Return of George Washington. The book focuses on what is arguably the most under-appreciated period in that 45 years, the time between Washington’s resignation of his command of the Army of the Revolution and his inauguration as the first President of the United States.

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Law Schools Must Respond to Technological Change

My last post suggested that the decline in law students was due in large part to a technological shock that has decreased demand for lawyers, at least at the price point law schools are producing them. Law schools need to respond. They must shape a curriculum that will prepare their students for the world of growing machine intelligence that was responsible for the shock.  They also need to generate income from other programs to replace the law students who will not be returning.

In the coming age of law and computation lawyers will do better in fast-changing and high value areas. Machine intelligence succeeds through pattern recognition; in narrow, fast-changing areas, it has less data and thus fewer opportunities to identify promising correlations. In such areas, lawyers will have room to craft intuitively appealing arguments to regulators and courts. And when the transaction are of high value, even if machines are helpful in generating documents and precedent, human creativity will continue to add value.

Regulatory areas, particularly financial ones, are appropriate areas for more courses.

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Illinois Looks for a Life Raft

Illinois Flag Closeup

Chapter 9 of the U.S. Bankruptcy Code governs bankruptcy proceedings for municipal governments (but not states). It’s been used mostly to restructure debts of small government entities who find themselves in temporary distress. But Chapter 9 has also been used to solve, in a manner of speaking, solvency problems incurred by real places, like Stockton (CA) and Detroit. And there’s more to come.

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