Eliminate Missouri Plans for Judicial Selection

It is election season again. And that means it is time for complaining about electoral campaigns against retaining justices who sit on state supreme courts. These campaigns are said to be inconsistent with judicial neutrality because judges are forced to take positions on jurisprudence. Big money is said to buy judicial favoritism.

I am no fan of subjecting judges to elections. In my view, the far superior system is one, like the federal structure,  in which the elected chief executive of the jurisdiction appoints judges for a term of years upon confirmation of a legislative body. But judicial elections are necessary, if the appointments are made according to so-called Missouri plans, an arrangement that permits  lawyers to create a power center of their own in the judiciary.  Indeed, while elections provide some corrective to the democratic deficit of those plans, they are an insufficient corrective, because voters do not  generally focus on judicial elections. The better solution would be trade the end of the judicial elections for the termination of Missouri plans.

The classic Missouri plan works like this:

Read More

The Taxman Cometh, Twice

Abstract Businessman in Tax Ball and Chain

Among the cases teed up for the Supreme Court’s current Term is Comptroller v. Wynne, arising over the state taxation of personal income earned and taxed in other states (and therefore, in interstate commerce). The vast majority of state and local jurisdictions credit residents’ taxes paid to “foreign” jurisdictions, meaning other states. Maryland credits such taxes against state but not against local income taxes (which are collected by the state). Through an S-corporation, the Wynnes (Maryland residents) earned a ton of income in thirty-plus states and paid income taxes there—and then again paid the local tax on that income, without receiving a credit. The Maryland Court of Appeals deemed the arrangement unconstitutional. The Comptroller asked for and received cert. Briefs etc. can be found here.

Boring? Maybe (unless you live in Maryland and earn income elsewhere). But there are reasons to pay attention.

Read More

Assessing the Blowback from Hobby Lobby

Supreme Court Hears Arguments In Case Challenging Affordable Care Act

The Hobby Lobby case, “one of most publicized controversies in decades involving a religious claim,” in the words of Columbia law professor Kent Greenawalt, prevented the Obama administration from mandating under the Affordable Care Act (ACA) that all employers cover all contraceptives approved by the Food and Drug Administration—even those drugs and devices that objecting employers believe “cause the demise of an already conceived but not-yet-attached human embryo.”

The U.S. Supreme Court held that the Religious Freedom Restoration Act (RFRA) prohibits the government from forcing closely held, family-owned corporations to cover such drugs and devices if a less restrictive means is available. One less restrictive means available to the administration, the Court noted, was to extend to such corporations the significant concessions the Obama administration already made for objecting, religious non-profits. This is a step the administration is now taking.

It was a high-profile win for religious objectors. Nonetheless, the highest percentage of Americans in a decade, according to the Pew Research Center, see religion’s influence as waning. How can this be?

Read More

Modified: GMO Labels That Work


When the “in” crowd wrests the levers of power from the “out” crowd, be ready to duck. Trendy slogans may well become administrative fiat.

Authoritarian fashion-sense often relies on poor reasoning and an even poorer respect for individual autonomy. For a case in point, look no further than the intensifying push for genetically modified labeling in Colorado (pending state motto: “We’re Cooler than California”).

Genetically modified foods are definitely “out” for Colorado’s granola ’n arugula crowd, and they want the state to help make their case.  Proposition 105, like California’s failed Prop 37, asks Colorado voters whether it ought to be mandatory to include labels on all products containing genetically modified ingredients. The Coloradans might just outdo those Pacific-fronting pikers on this one, as happened with marijuana. Weed is hip, even good for you. Genetically modifying food? “Um, that’s just not cool, man . . . ” 

Read More

The Rise of Machine Intelligence and the Need for Judicial Protection of Occupational Freedom

Occupational freedom is one of the most pressing issues of our time.   The ever greater power of machine intelligence will disrupt more and more industries.  For instance, self-driving vehicles will cause many people  in the transportation industry to lose their jobs.  People in those industries will then look for new positions. But the barriers of occupational licensing have been increasing in the last decades, making it harder to move to new jobs.

The judiciary could be an important force against such irrational restraints on occupational freedom. That is the social background of North Carolina  Board of Dental Examiners v. FTC, a case that was argued before the Supreme Court yesterday.

Read More

Mario Rizzo on Classical Liberals and Libertarians

My old friend Mario Rizzo has a great post up on classical liberalism and libertarianism.  The post discusses how to distinguish the two different political theories.  Interestingly, Mario does not follow the more common distinction – for example adopted by Richard Epstein – that classical liberalism is more moderate than libertarianism, because the former accepts the need for government to promote public goods.  Mario notes that the “philosophy of liberty has always admitted of gradations or degrees” and that classical liberals such as Lysander Spooner, Auberon Herbert, and Benjamin Tucker were radicals. Instead, Mario argues that “Classical liberalism is the philosophy of…

Read More

Tyranny on the Margin

Crisis Management

I’m grateful for the responses to my earlier Office for Civil Rights post, especially the comments that illustrate the corrupting consequences of “government by guidance.” As I suggested, and as many readers emphasized, the subject raises much larger questions about lawful government. Herewith a few more comments on how difficult this is—and a hopefully cheerful suggestion as to what could be done.

The trajectory from lofty, well-meant enactments (the Civil Rights Act, Title IX) to the scape-goating of students, teachers, and bandleaders is a straight line: statute to regulation to “interpretation/guidance” to “voluntary” compliance. But the incentives are lousy each step of the way. Congress would rather delegate than legislate; the agency would rather bully than write a rule; and the regulated entities would rather throw people overboard and kowtow or pay money than fight back. This happens everywhere; OCR is just an example. And, no: this isn’t about the Obama administration or particularly wayward bureaucrats. If it were, things could be fixed at the ballot box, or by courts. The grim, incentive-driven march of government by guidance isn’t.

Read More

Is the Islamic State Islamic?

Islamic State flag waving on the wind

Nothing could be more curious to Muslims than Western non-Muslims telling them what their religion is about. Would not Christians find it odd to hear from Muslims what the true meaning of their religion is? Nevertheless, after almost every terrorist act against a Westerner, particularly the more gruesome ones like beheadings, Western heads of state reflexively react with protestations that such acts are absolutely un-Islamic, despite the explicit claims of their perpetrators that they are done precisely as religious acts, as they exultantly declare, “Allahu Akbar.”

Read More

The Insights and Fancies of a Billionaire Entrepreneur

Peter Thiel’s new book, Zero to One, is ostensibly a self-help book for those who want to succeed at start-ups.  But any powerful self-help book flows from a philosophy of the world, and Thiel reflects his libertarian and transhumanist impulses.  Zero to One is thus far more interesting and more original than most business books.  But the book is also at times disappointing because, amid arresting insights, it contains overstatements and simplifications. And at the heart of the book is a paradox: Thiel believes that innovation is less than it could be, but he does not offer a convincing explanation of why the market for startups should be failing.

The specific advice to startups is the book’s greatest strength.

Read More

Intoxication and Mutual Sexual Assault under the Yes Means Yes Statute

One more issue that the so called Yes Means Yes California statute on sexual assault in colleges raises is how sex between people who are intoxicated is regulated.  (For my earlier discussion of the statute, see here.)

The statute requires colleges to adopt:

 (2) A policy that, in the evaluation of complaints in any disciplinary process, it shall not be a valid excuse to alleged lack of affirmative consent that the accused believed that the complainant consented to the sexual activity under either of the following circumstances:

             (A) The accused’s belief in affirmative consent arose from the intoxication or         recklessness of the accused.

 (4) A policy that, in the evaluation of complaints in the disciplinary process, it shall not be a valid excuse that the accused believed that the complainant affirmatively consented to the sexual activity if the accused knew or reasonably should have known that the complainant was unable to consent to the sexual activity under any of the following circumstances:

             (B) The complainant was incapacitated due to the influence of drugs, alcohol, or       medication, so that the complainant could not understand the fact, nature, or        extent of the sexual activity.

 These provisions address two aspects of intoxication.  One involves a situation where the intoxication of the accused led him or her to conclude that the complainant had affirmatively consented.  The other involves a situation where the the complainant appeared to affirmatively consent, but was unable to do so because of intoxication.

Clearly, the statute treats the intoxication of the complainant and the accused quite differently.  If the accused’s belief in the complainant’s consent was due to his or her intoxication, that’s tough.  By contrast, the apparent affirmative consent of the complainant does not count if the accused reasonably should have known the complainant was intoxicated and unable to consent. 

Read More