Another Step Toward Neutral Principles in Campaign Regulation

This week the Supreme Court heard argument in Williams-Yulee v. The Florida Bar. The case is the sixth campaign finance case heard by the Roberts Court but the first to focus on judicial elections.  The Florida bar disciplined Ms. Williams-Yulee for sending a letter to solicit contributions for her campaign for election as a Florida trial judge. The bar found her solicitation to violate a rule of the Florida Code of Judicial Conduct that barred personal solicitation of campaign contributions.

A central doctrinal question in the case is whether the Court will apply its overinclusiveness/under inclusiveness test to these regulations.

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DOJ’s Reply Brief in King: They’re under Water and They Know It

I haven’t had much time to parse the government’s reply brief in King v. Burwell. A few quick reactions:

They Know They Lose. Start of the brief (“Statement”):

The Affordable Care Act was enacted to provide “Quality, Affordable Health Care for All Americans.” Tit. I, 124 Stat. 130 (emphasis added).

An all emphasis, without more (and Congress ensured that comprehensive reach …) signals that the rest is junk. (You’re trying to make a single word trump the entire instrument.)

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More on Bias in the Implementation of Sexual Assault Laws

Via Eugene Volokh, I came upon this article in the American Prospect by feminist advocate and retired federal judge Nancy Gertner, the author of “In Defense of Women: Memoirs of an Unrepentant Advocate.”  The article, which criticizes the new Harvard sexual assault policy, is well worth reading.  While it covers some of the same ground concerning the biased university policies that I discussed in prior posts, it also has a fascinating discussion of the problems with the criminal justice system as well.  This is important because it is often recommended that these sexual assault cases be handled by the police and the courts.

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Guilty Because Charged

Even the most thoroughgoing of penological liberals, I have noticed, has a category of crime – a favourite of sorts, I suppose – that he thinks ought to be severely punished. However much he may deny that punishment is justified, morally or practically, for other crimes, the crime he has selected as being of special heinousness deserves only the most condign punishment. All other crimes may in his opinion merit, and be susceptible only to, explanation and understanding, but this crime must, for moral reasons, be treated with exemplary harshness. At present in Britain the crime selected by penological liberals for…

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Reforming the Administrative State Is a Game of Inches

The oral argument transcript in Armstrong v. Exceptional Child Center—subject of my preceding post —is here. Edwin S. Kneedler’s argument for the feds starts on page 16. ‘Tis a thing of beauty: it articulates the correct theory (mine J) almost verbatim, without any hedging or equivocation. This is remarkable for several reasons:

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Jaffa As Neo-Puritan

In the days since Harry Jaffa and Walter Berns passed away, the former’s angry disputes with his fellow Straussians have received a lot of commentary. There are those who say it was all quite childish. And you know, a lot of it was, precisely because the differences so often seemed small or, when examined closely, not really differences at all. Still, some of the differences are real enough to merit our close attention.

On the more general issue of which student of Strauss is more faithful to the true and complete teaching of Leo Strauss, the most obvious response is that the capable students of any great teacher always grab on to part of what he (or she) taught and confuse it with the whole. Marx and Hegel. Alexandre Kojève and Hegel. Maybe even Aristotle and Plato.

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The Triumph of His Will

President Obama Delivers The State Of The Union Address

President Obama’s State of the Union Address makes blogging colleague Greg Weiner’s suggestion to abolish it look pretty good. Of the constitutional clause requiring that he address Congress, Greg observes:  “If anything, modern Presidents ought to view its opening phrase—‘from time to time’—as a limit rather than a license.”  I am even more \ drawn to Frank Buckley’s devastating critique of contemporary presidential governmentThe Once and Future King: The Rise of Crown Government in America.

I would have thought that Paul Ryan (R-Wis.) of all pols would not have conceded victory to Obama when he attacked Obama’s “class warfare” proposals—which is exactly the way Obama wants them viewed. Or that the congressman characterized the speech as not as extreme as he feared it would be.

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Old Complaints about New Technology

In this Sunday’s New York Times Book Review Leon Wieseltier has polemicized against the digital age. While beautifully written, its major propositions are either wrong or not wholly coherent.  All have been heard before in previous ages of technological change. While it is difficult to isolate all the sources of Wieseltier’s distemper, here are four in ascending order of their claim to be taken seriously.

1. Wieseltier claims that “the greatest thugs in the history of the cultural industry” (by which he means Amazon and the like) have destroyed bookstores and record shops. Similarly, journalists now earn less money because of competition from digital platforms. These complaints are the whining of producers displaced by competition that helps consumers. The Amazon and Barnes and Noble websites allow me faster access to a much wider variety of books than the independent bookstores of my youth. And unlike some of these stores, they do not discriminate against books on political grounds. Journalists have no greater claim to be insulated from competition than other professions. And again the web has given range to much more variegated opinion and analysis than the mainstream media of old.

Wieseltier’s complaint resembles nothing so much as those of French publishers of the late eighteenth century who complained to the National Assembly about competitors with cheaper means of production:

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Chamber of Commerce Defends Rentseekers United

Chamber of commerce

Today (Tuesday, January 20) the Supreme Court is hearing arguments in Armstrong v. Exceptional Child Center. It’s a hugely important case that will shape the contours of federal spending statutes (here, Medicaid) and of federalism.  While the dispute is between a state (Idaho) and Medicaid providers, there is more to learn from two amici: the administration, which gets the case admirably right; and the Chamber of Commerce, which gets it horridly wrong.

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