Liberty Law Blog

Absent Justice: Game of Thrones Season 4

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“If you have come for justice, you have come to the wrong place,” cries Tyrion Lannister, sitting in a dungeon, accused of a murder that his judges, who include his father, know he did not commit.  Tyrion makes this comment to a noble who offers to be his champion in a single combat against a fearsome warrior—a combat that will resolve Tyrion’s case. By killing the warrior, the noble aims to avenge the rape and murder of his sister.  But, as Tyrion’s champion, the noble has his skull crushed for his effort.

Tyrion’s comment could serve as an epigram for the entire season. It is not only the intrigued filled capital of King’s Landing but the entire world which appears to be the wrong place to find justice.

Indeed, this season is best seen as a meditation on the absence of justice in that world and perhaps on the limitations of justice in ours.  Being just is a very dangerous personal stance to take in a pervasively unjust society.  A virtuous circle of good behavior cannot begin when injustice is tolerated, let alone rewarded. Continue Reading →

Federalism and the Treaty Power: A Response to Mike Ramsey

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In a prior post, I defended Justice Thomas’s position in Bond that treaties can only extend to matters involving intercourse with other nations. Mike Ramsey, who unlike myself is an expert regarding the Treaty Power, disagrees with this position, but I am not persuaded.

Justice Thomas had argued in Bond that the Treaty Power is limited by the traditional subjects of treaties, such as war, peace, and trade between nations. According to Thomas, the original meaning of treaty was an agreement “addressing matters of intercourse between nations rather than domestic regulation.”

Mike Ramsey adopts a different interpretation of the Treaty Power – according to Mike, a treaty must merely cover subjects that are genuinely of concern to the parties to the treaty. Mike then argues that the reason why treaties in the 18th century were restricted to matters such as war, peace, and trade between nations is that those happened to be the subjects that nations were concerned about at the time. But since nations are now concerned about additional matters, such as human rights and how a nation treats its own citizens, treaties can extend to those matters. Continue Reading →

Global Warming’s Community of Science Betrays Itself

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President Obama promised that he would use science to save the planet from climate change and now he has delivered. His Environmental Protection Agency has reinterpreted a 1970 law section, whose proposed revision was defeated by the Democratic Senate in 2010, into a 645 page rule forcing states to reduce overall carbon emissions in their thousands of fossil fuels power plants 30% by the year 2030, one state by 72%. Obama claims the cost per year will only be $8.8 billion but the U.S. Chamber of Commerce estimates $50 billion because the government assumes alternatives can somehow be found at cheaper costs than technology can produce today. Continue Reading →

Sniff, Collect, and Exploit it All

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The easy shot against Glenn Greenwald’s No Place to Hide: Edward Snowden, the NSA and the U.S. Surveillance State would be to dismiss its warnings as immoderate and overwrought. “Converting the Internet into a system of surveillance,” he declares nearly off the bat (6), turns it “into a tool of repression, threatening to produce the most extreme and oppressive weapon of state intrusion human history has ever seen.” Similarly, “[t]he US government had built a system that has as its goal the complete elimination of electronic privacy worldwide.” (94) These are bold claims on which to deliver. And yet, piling evidence atop evidence, Greenwald does. Continue Reading →

Uber Everywhere

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This week brought more news of a globalized world—a simultaneous strike in Paris, London and Berlin against Uber—the service that allows people to summon cars through phone apps. Uber is itself a worldwide phenomenon.  It can succeed anywhere there are a substantial number of smartphones, and that is rapidly becoming everywhere.  In fact, the strikes backfired by giving publicity to Uber and encouraging more people to sign up.

While taxi drivers will continue to try to strangle the service, they will lose—quickly in some jurisdictions and slowly in others, like Virginia where regulators last week banned Uber. The advantages of Uber are ultimately too great to be denied and Uber-friendly jurisdictions will serve as demonstration projects.  On Thursday The New York Times described Uber’s many benefits for consumers and for society.  Most obviously, the service will bring more competition to an often highly regulated and sluggish market—the taxi industry.  In particular, it will help poorer and middle-class consumers who are unable to find cabs at crucial times and are not regular users of higher-priced car services.  It will shrink the carbon footprint, as fewer people will need to own cars and spend time looking for parking spaces.

Uber could also help decrease inequality of consumption, as I have previously argued that information technology generally does.  Only the .01 percent can afford chauffeurs at their beck and call.  But how different is the experience of having a car ready to pick you up at a moment’s notice? More and more people can ride like the millionaires of old. Continue Reading →

All the News That We’re Willing to Print

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By now, most people reading this site will have heard the news:

The Internal Revenue Service said Friday it has lost a trove of emails to and from a central figure [Lois Lerner] in the agency’s tea party controversy, sparking outrage from congressional investigators who have been probing the agency for more than a year.

This is a serious matter.  Obviously, the loss of the e mails could conceivably be innocent, but the circumstances suggest otherwise.  Instead, the circumstances suggest that there was quite a bit of dirt in those e mails.  The AP, the Washington Post, and the Wall Street Journal have reported the matter.

Yet, the New York Times has so far not been willing to cover the story.  As others have said and a google search confirms, the Times has not reported on the matter.

What possible justification could be given for this?  I cannot think of one.  One might believe that a sense of integrity and or least a fear of embarrassment would cause the Times to at least report the story, even if it were buried — but apparently not.

It is my sense that newspapers play to their readers.  New York Times readers are liberal and so the Times caters to their prejudices.  If that is so, then it will only be the outrage of New York Time readers that will lead the paper to behave differently.  So I ask the readers of the New York Times: Where is your integrity?  Where is the outrage?

Sunni-stan Rising

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 Peshmargas of Iraq Kurdistan Regional Government take security precautions on Mosul-Erbil road on the outskirts of Mosul after the militants of Islamic State in Iraq and the Levant seized Mosul, in Iraq on 12 June, 2014.

Peshmargas of Iraq Kurdistan Regional Government take security precautions on Mosul-Erbil road on the outskirts of Mosul after the militants of Islamic State in Iraq and the Levant seized Mosul, in Iraq on 12 June, 2014.

Sunni fighters from around the Muslim world, having failed to conquer all of Syria from the Assad regime’s Alewites (a branch of Shia Islam) have been pushed eastward into majority-Sunni areas. These extend from east-central Syria into north-central Iraq. A wholly artificial border divides them. In recent days, they have established control over Sunni-majority areas of Iraq, from Fallujah and Mosul to the edges of Tikrit and Samarra. Our foreign policy establishment’s illusion that world events are principally about the United States, and its reflexive commitment to existing international borders, has led it to misunderstand that the region’s wars have been about re-drawing the unnatural borders imposed by the Wilsonians who subdivided the Ottoman Empire in 1919.

Our establishment, having neither ideas nor means for stopping this re-drawing, has reacted by hand-wringing (e.g. “the fall of Mosul” WSJ 6/11). Herewith, some suggestions for understanding these events’ implications for U.S. interests. Continue Reading →

Administrative Adjudication: Even Worse than it Looks?

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Like many others at the moment, I am making my way through Philip Hamburger’s Is Administrative Law Unlawful? One of the most shocking chapters is his chapter on America’s “Return to Extralegal Adjudication,” a problem that constitutional law had originally aimed to constrain, but which has re-emerged in the context of the modern administrative state.

I knew that there were problems with administrative adjudication – I just didn’t grasp how pervasive the problems were until Hamburger laid them out so systematically. Continue Reading →

Endless History: The Tension in Liberal Democracy

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Last week Francis Fukuyama revisited his justly famous article, “The End of History,” which in 1989 argued that history, in a Hegelian sense, was coming to an end. With the breakup of the Soviet bloc, liberal democracy had won, and there were no real ideological competitors. As Fukuyama himself recognizes, 2014 does not look like 1989, but he nevertheless argues that liberal democracy remains effectively the only plausible system for modernity.

Fukuyama’s defense of his own work is thoughtful, but his original thesis suffers from a problem that is playing out now all over the world. There are inherent tensions in liberal democracy that ensure that history continues. By protecting liberties, liberalism prioritizes individuals, while democracy necessarily prioritizes a collective right—the right of a people to govern themselves and impose obligations and indeed trench on the liberties of others.

In a constitutional republic such as ours, we try to resolve that tension by permitting democracy for ordinary politics while enshrining rights that are beyond majority control. But even here with a constitution that has lasted for two hundred years the mixture is unstable. Just consider current conflict between campaign finance regulation and the First Amendment. Around the world the conflict is truly combustible.

Fukuyama acknowledges that some nations that looked in the 1990s as if they were moving to liberal democracies are backsliding today, but he does not discuss how this problem reflects in large measure the basic tension within liberal democracy itself. Continue Reading →

The Treaty Power and the Necessary and Proper Clause

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In my previous post, I argued that the Treaty Power should be interpreted as allowing the President and the Senate to make treaties that involve intercourse with foreign nations, but not simply domestic matters. In this post, I discuss the second constitutional issue raised by the decisions in Bond v. US – whether Congress has the authority under the Necessary and Proper Clause to pass legislation (outside of its other enumerated powers) that carries into execution a treaty. (As with my prior post, I note that I have not fully researched this issues and therefore my views should be regarded as preliminary.)

In analyzing this question, I will assume that the Treaty Power only allows treaties that involve intercourse with foreign nations. If that is true, there are at least two significant positions as to Congress’s authority to carry those treaties into execution:

1. Congress can only pass legislation under the Necessary and Proper Clause that carries into execution Congress’s other enumerated powers, but not the President and Senate’s Treaty Power.

2. Congress can pass legislation under the Necessary and Proper Clause that carries into execution the President and Senate’s Treaty Power.

The first position was articulated by Justice Scalia’s concurrence in Bond, and was joined by Justice Thomas. It was first developed by Nick Rosenkranz. Under this interpretation, while the President and Senate could enter a treaty that involved intercourse with foreign nations that extended beyond Congress’s enumerated powers, Congress could not pass legislation that carried that treaty into execution. Continue Reading →