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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How the Subservient Branch Declares War

Obama Asks Congress to Authorize War Against Islamic State

In the debate over the proposed new Authorization for the Use of Military Force, some have suggested that the President is asking to have his arms tied. In fact the move is cleverer. He is asking Congress to authorize what he has already done and therefore apparently thinks he can do anyway, and asking with enough modifiers—what is an “enduring” ground operation? who will decide how long it “endures”?—to vitiate any congressional limitations on his power.

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Reacting to Lincoln

In my previous post, I wrote about a talk that I had recently given about Lincoln.  I had not expected it to be terribly controversial – in fact, I wondered whether it was such common knowledge that it was not worth reporting.

But there is something about Lincoln that leads people to react in extreme ways.

Let me start with the long criticism by the first commenter, which is then endorsed by the second commenter.  The comment goes on and on, in an extremely intemperate way. The principal complaint appears to be that I took Lincoln at his word and did not conclude that he repeatedly lied to the American people about his views on slavery.  For this, I am accused of somehow not respecting Lincoln.  I would think if I had accused him of lying, without any foundation, that I would be open to criticism.  But apparently the opposite is the case.

The funny thing is that my post did not suggest that Lincoln personally approved of slavery or would not have liked to have eliminated it more quickly.  Quite the contrary.  As I said, “in Lincoln’s defense, he believed that any stronger position would have been rejected by the American people and therefore this was the best that could be accomplished for the slaves.”

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Still Amusing Ourselves to Death

man watching tv subliminal message concept

In September 1988, Michael Dukakis and George H. W. Bush met in their second televised presidential debate. Moderator Bernard Shaw of CNN began by inviting Dukakis, the Governor of Massachusetts, to imagine his wife Kitty as the victim of a horrible crime. “Governor,” asked Shaw, “if Kitty Dukakis were raped and murdered, would you favor an irrevocable death penalty for the killer?”

The question wasn’t entirely out of the blue; Dukakis’ opposition to the death penalty was well-known and Republican strategists had aimed to portray him as generally soft on crime. But clearly Shaw was not hoping to initiate a thoughtful discussion of law and order issues. The first debate had been widely described as dull; the CNN newsman seemed determined to make sure that this one was not short of dramatic pizzazz. Would the bland Dukakis squirm and sweat uncomfortably? Would he flare up in rage? Of course the question was tasteless. But a fraught response would make good TV.

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Will Law School Applicants Return?

law school apps

Law schools have suffered a precipitous drop in applications in the last six years—the largest decline in decades. To assess whether this decline will continue and to determine the response, legal educators must first figure out the causes of the decline. Here are the three most plausible causes in ascending order of the threat that they pose to incumbents in legal education. The first is the Great Recession: law schools have declined because of a decrease in the demand for legal services caused by the Great Recession. The second is the existence of a lawyer bubble: law schools previously produced too many lawyers and there is overhang of supply that makes new lawyers less necessary. The third is structural: law has faced a technological shock, which has depressed the demand for lawyers and/or their income.

It seems quite clear now that Great Recession cannot be assigned a primary role.

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Who Are the Guardians of the Natural Rights Polity?


The status of judges in the constitutional regime is fundamentally a question of the place of politics, rightly understood, in human life—a point illustrated by the thoughtful exchanges between Richard Reinsch and Randy Barnett in this space and at Volokh. Reinsch argues the danger of giving judges indeterminate power over unspecified natural rights. Barnett replies that these need not be specified; judges need only ensure that governmental power is reasonably used to promote permissible ends.

Theirs was a productive conversation, and it might be usefully expanded to the following question: Even granting a robust reading of the Ninth and Fourteenth Amendments, what is the basis, and what are the costs, of empowering judges to safeguard the rights therein contained?

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