Against National Injunctions

The Trump executive order temporarily barring travelers from 7 countries has once again raised the issue of a single federal district court issuing a nationwide injunction.  This type of injunction was also used against the Obama Administration’s deferred action program (DAPA).  In my view, these type of injunctions are extremely problematic. Samuel Bray, an expert on equity, has written about the serious problems with these injunctions.  In this short piece, he notes three basic problems.  The first is the problem of forum shopping.  The plaintiff simply chooses an hospitable circuit in which to file the case.  The Ninth Circuit for the…

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Capitalism According to Michael Novak


I met the late Michael Novak as the lone Protestant attending the first Tertio Millennio Seminar. The first year it was a month-long seminar held in Liechtenstein. The basic form continues today, with around ten U.S. students joining around twenty European students. The European students that first year were mainly eastern Europeans; it was just a few years after the wall fell. Joining Novak in organizing the first seminar were George Weigel, Fr. Richard John Neuhaus, Rocco Buttiglione, and Fr. Maciej Zieba, OP.

The centerpiece of the seminar was focused study of Pope John Paul II’s encyclical, Centesimus Annus and, more broadly, Catholic social doctrine and teaching. Several American works were included at the time as well, including a couple of essays from The Federalist and a few selections from Novak’s book, The Spirit of Democratic Capitalism.

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Public Citizen v. Trump: Roadmap for the Resistance

American candidate speaks to the people crowd

Eight days after President Trump signed his “One-In, Two-Out” Executive Order No. 13771, Public Citizen, the Natural Resources Defense Council, the Communications Workers of America, and Earthjustice filed suit against the President and a dozen or so agency heads, seeking declaratory and injunctive relief. That order, entitled Reducing Regulation and Controlling Regulatory Costs, instructs agencies to identify two old regulations for removal for each new rule they propose, and to limit net incremental regulatory costs to $0 in the remainder of fiscal year 2017. Plaintiffs allege that it would prevent agencies from maximizing the net benefits of regulation, thus depriving the…

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Michael Novak, RIP


Michael Novak, one of the country’s most eminent thinkers, theologians, and public intellectuals, passed away this past Friday at age 83. His many friends mourn, and the Heavens rejoice. They’re probably listening to Johann Sebastian Bach up there—by Michael’s lights, the best Catholic who never actually was one. I can’t say that I knew Michael Novak particularly well. I first met him in 1985, when he interviewed me for a research assistant position at the American Enterprise Institute. I had read The Spirit of Democratic Capitalism (1982), Michael’s confident and justly famous embrace of a free economy and the rule of…

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Why Berkeley and BYU Should be Loud and Proud about It

The University of California, Berkeley emerged again as a bastion of protest against perceived fascism. Alt-Right leader Milo Yiannopoulos was invited by the Berkeley College Republicans to speak on the campus, only to be blocked by protestors and violent rioters. President Trump, in true late-night form, tweeted: No free speech, ‘NO FEDERAL FUNDS?’

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The President’s Conduct Is No License for Others’ Unlawfulness

On this President’s Day there is a lot to criticize about the behavior of our current President.  Although other Presidents have certainly not conducted themselves with dignity (think Bill Clinton), President Trump’s demeanor and decorum during his news conference was more a throwback to his days as a reality TV star than a performance befitting a head of state.  Presidential dignity promotes the stability of our union.

And while other Presidents have told more consequential falsehoods (think “If you like your plan you can keep it”), few have made statements that are so transparently false at the time they are made, such as the President’s claim about the relative strength of his electoral college victory. Presidents must rely on their credibility to take unpopular and contestable actions in times of crisis and President Trump is in danger of squandering his.

Some of the President’s executive orders, like that on immigration, have been issued without sufficient deliberation and his remarks in their defense have been intemperate insults rather than measured criticisms of the substance of their rulings.

But the behavior of the President is no license for lawlessness and the violation of long standing political norms. Yet that is what some of his opponents have claimed with the support from intellectuals.

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Caveat Venditor & Market Failure in the Academic Job Market

adjunct faculty

The Chronicle of Higher Education published the speech Kevin Birmingham delivered last October upon receiving the Truman Capote Award for his book, The Most Dangerous Book: The Battle for James Joyce’s Ulysses. In his speech, Birmingham decried the widespread employment of adjunct faculty members, particularly in the humanities, as “exploitation” and “injustice.”

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Split and the Snowflake Generation

Film Review Split

Horror movies don’t get the respect of dramas, comedies, or even superhero movies, but in some ways they are the most daring kind of storytelling. Unlike romantic comedies or action movies, horror films are allowed to be unpredictable. Characters we’ve come to like bite the dust. Everybody knows that Spider-Man is not going to go down but in The Exorcist (1973), the leading character, a priest, does. In Drag Me to Hell (2009), a young woman who was heartless to a poor old woman gets sucked into the netherworld by demons. In Sinister (2012), one of my favorites, a writer played by Ethan Hawke realizes too late that his fascination with watching grisly movies he found in the attic of a new home is letting a sinister force into his house. That sort of thing won’t happen to Captain America.

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Constitutional Norms Matter

Washington DC Capitol dome close up with American flag flying

American constitutionalism is famously about written rules. Our constitutions are filled with “thou shalt nots.” So much so that many unfortunately jump to the conclusion that the entire point of a constitution is to impose limiting rules. And certainly for several decades, the American experiment with written constitutions stood out for the ways in which it bound government officials with legally enforceable rules.

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America, What’s Left of It: A Conversation with Patrick Deneen

conserving americaPatrick Deneen joins this edition of Liberty Law Talk to discuss his latest book, Conserving America? Essays on Present Discontents.