A Modest Proposal for Reforming the Administrative State

Wooden Judges Gavel And Old Law Books On Wooden Background

The problem of administrative government in the United States is well known to the readers of Law and Liberty. Congress delegates broad legislative power to agencies, sacrificing something of our republican character. An agency thus exercises not only executive power as part of that department of government, but also legislative power delegated to it by the Congress. Independently, agencies often exercise judicial power as well, adjudicating not only public rights cases but also cases involving common-law private rights traditionally reserved for Article III courts. We have sacrificed not only some part of our republicanism, then, but also a much greater…

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(Incrementally) Toward a More Libertarian Bureaucracy

The ambitious proposal reconsidering the foundations of the modern regulatory state that Ilan Wurman outlines in his thoughtful Liberty Forum essay is not an outlier. There seems to be a growing call—primarily among conservatives and libertarians—to return to first principles and rein in the administrative state. And I’m not just referring to Philip Hamburger’s condemnation…

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Freedom of Association and Antidiscrimination Law: An Imperfect Reconciliation

double exposure of businessman or salesman handing over a contra

The topic of this essay[1] is to identify the proper role of antidiscrimination laws in relation to the general principle of freedom of association, which is itself a subset of the basic principle of freedom of contract. Historically, the usual understanding was that the principle of freedom of association enjoyed pride of place in the social hierarchy, such that the antidiscrimination principle was employed only in select contexts, primarily as a counterweight to monopoly power in a broad class of public utility and common carrier settings. The basic position had strong underpinnings in the constitutional provisions that protected equally property…

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Classical Liberalism: Teaching Its Own Undoing

Professor Richard Epstein has performed a welcome service in reminding us of the classical liberal case for the freedom of association. The classical liberal champions the primacy of rights as guarantors of the individual’s sovereignty to make free dealings with other sovereigns. He values rights as safeguards of the freedom to make moral and economic…

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Richard Epstein’s Imperfect Understanding of Antidiscrimination Law

Richard Epstein is right about how to think about antidiscrimination law. The general principle governing transactions between private parties should be freedom of association, for reasons of both liberty and efficiency. Any departure from that rule, such as a prohibition of discrimination, has the burden of proof. Epstein, however, can’t let go of that general rule…

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Government Intervention Springs Eternal for Antidiscrimination Laws

In his Liberty Forum essay, Professor Richard Epstein makes a persuasive case that antidiscrimination laws are “a great mistake outside of monopolies.” But advocates of “antidiscrimination” laws have a view of monopoly—or of “coercion” and “force”—that is much more expansive than Professor Epstein’s. The Progressive or modern liberal advocates of antidiscrimination laws advance a concept…

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How Classical Liberal Principles Address Cultural, Social and Economic Issues: Richard Epstein’s Reply

My Liberty Forum Essay, Freedom of Association and Antidiscrimination Law: An Imperfect Reconciliation has provoked three thoughtful responses. Those by Marc DeGirolami and Paul Moreno are supportive of my approach and may be  best described as intramural disputes among individuals who agree on the relationship between freedom of association and basic antidiscrimination laws. Andrew Koppelman’s…

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Springtime for Schmitt

Schmitt5

The political theorist Carl Schmitt (1888-1985) published his most important work in the 1920s and 1930s—in German. Though he lived to the age of 97, almost all of his postwar publications were cautious elaborations of themes he had deployed before the Second World War. The most remarkable thing about Schmitt is his appeal to contemporary academics in the English-speaking world. Of the 13 books by Schmitt now available in English, all but three have appeared for the first time in English (or in new, revised editions) since 2004. By the far the most citations to Schmitt in (English-language) academic publications are…

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Rethinking the Political Horizon of Liberalism

At the outset of his provocative Liberty Forum essay, Jeremy Rabkin notes that the most remarkable thing about Carl Schmitt is “his appeal to contemporary academics in the English-speaking world.” Schmitt’s literary afterlife and the current level of interest in his works are, indeed, surprising given his infamous political trajectory and his ambiguous and unconvincing…

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Schmitt and the Power of Language

Jeremy Rabkin has captured a good sense of Carl Schmitt in his Liberty Forum essay. Like him, I agree that it is difficult to grapple with the author’s exceedingly abstract prose. But there is a certain urgency that requires us to try, if only because, as Rabkin has also shown, the allure is proving all…

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Carl Schmitt, Between Banality and Catholicism

Encountering Carl Schmitt for the first time is a shock, especially if one is raised to respect what Jeremy Rabkin, in his Liberty Forum essay, correctly describes as the liberal pieties. But if one cares about liberalism it would be a mistake to write Schmitt off as a Nazi, a nihilist, or a promoter of…

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Springtime for Schmitt? Jeremy Rabkin Responds to His Critics

I am grateful to the other contributors to this forum for enlarging our discussion of Carl Schmitt. They have not persuaded me to temper my own conclusion: Schmitt offered a great deal of poison, which is not rendered more palatable by his large admixtures of well-aged snake oil. Perhaps the best way to explain my obduracy…

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Respectable Partisans of Modern Liberty

Sir George Hayter's 'The House of Commons' (1833)

Fifty years have passed since Harvey Mansfield’s path-breaking Statesmanship and Party Government first appeared. It is a book so good that Leo Strauss is said to have wished he had written it. The original edition is now available as an e-book, so the busy Democratic operative may read it on hilarymail as she travels in search of wisdom from Hollywood to Havana. Of course, she is unlikely to seize the opportunity. The illumination scholars could once offer well-meaning politicians about prudence, statesmanship, and natural law—topics Mansfield discusses—is today dimmed by academics’ enlistment as experts on turnout, traffic, taxes, and triage. Those…

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The Work of Reputable Parties

Parties have long been respectable features of modern liberal democracy. But that is not to say that in America our current political parties are respected. The summer of Donald Trump, which may finally be fading, suggests a craving for leadership and boldness that is larger than partisan affiliation: Americans increasingly doubt that either party is…

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The Prudential Path of Natural Rights

Edmund Burke’s defense of political parties is also a defense of conservatism. It remains true that the “respectability of party”—Harvey C. Mansfield’s perfect phrase from Statesmanship and Party Government: A Study of Burke and Bolingbroke—continues to depend on the respectability of conservatism. Professor Blitz suggests this also, asking in his Liberty Forum essay what we can…

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Whose Statesmanship? Which Burke?

Mark Blitz reads Harvey Mansfield as closely as Mansfield reads Edmund Burke. For this, and for his excellent Liberty Forum essay on Mansfield’s Statesmanship and Party Government, we are in Blitz’s debt. The book’s simultaneously ambivalent and appreciative reading of Burke endures 50 years after its publication, and will rank among the definitive texts on the…

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Mark Blitz Replies to His Critics

The three replies to my essay are thoughtful discussions of important issues, and I thank the respondents for writing them. Professor Weiner correctly suggests that to rely on great men is a mistake. A polity will not endure if it allows significant decline and constantly requires for its salvation an excellence that is always rare. It…

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Government Decoherence and Its Discontents

Confused way of a businessman

If scholars of American government are like blind men trying to describe our ever-evolving elephant, what is most striking about scholarship in recent years is how many of us, making very different approaches to our subject matter, have been grasping for similar descriptors. Caesarism. Government by Deal. Government by Waiver. Kludgeocracy. Lawless law. In my own recent book: adhocracy. It would be wrong to suggest that these are merely different names for exactly the same underlying phenomenon. Those groping around the presidential head feel different textures than those who approach from the welfare state flanks or the regulatory rear. But there is…

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Decoherence . . . Or Incoherence?

Philip Wallach proposes the addition of a new term to our analysis of regulatory jargon—regulatory “decoherence.” I have no inherent objection to coining a new term: jargon can illuminate or obscure. In this case, however, Wallach has coined a new term when a perfectly valid old term would do—the problem with government regulatory policy is not…

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Adhocracy or Capture?

A prime example of the “adhocracy” that Philip Wallach refers to in his Liberty Forum essay is presented in his book To the Edge. He there describes as “adhocracy” the response to the 2008 financial crisis by the Bush and Obama administrations. For Wallach, the government’s actions amounted to “adhocracy” because they were “an unpredictable…

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Government Decoherence and Its Discontents – Wallach Responds to His Critics

What is required to maintain complex national policies and adjust them to the realities of a changing world—and to do so in a way that produces legitimate policies?  However we answer this, is our current institutional matrix up to the task? My suggestion of the term “decoherence” to organize thinking about these questions implies answers to…

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Congress Incongruous

grief

In the late 1970s, I taught at the Kennedy School of Government and directed the “Harvard Faculty Project on Regulation.” Our group—professors of law, economics, political science, business, and public health—was part of the then-vibrant regulatory reform movement, which also had cells at Chicago and other universities and at the American Enterprise Institute and Brookings Institution. We were forthright deregulators when it came to price and entry controls in transportation, energy, and financial markets. For the newer programs of health, safety, and environmental regulation,[1] we thought the agencies were pursuing worthy purposes in ways that were wasteful and counterproductive. We…

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Bucking Up the People’s Branch

We live still nominally under the Constitution of 1789 (as amended) but not under its republican government. The states are largely subordinated to the federal establishment. The people loathe the people’s branch, and in any case, Congress seems unwilling to make laws or to fight its corner in the balancing of powers. As Christopher DeMuth…

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Return to the Original Sources of the Separation of Powers

I want to begin this response with a series of questions and comments. When and why did America go wrong? Put slightly differently, when and why did America get derailed? Who or what did the derailing? And why is this derailment so much different, in kind and not simply degree, from every other perceived previous…

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Bring Back Institutional Jealousy

Christopher DeMuth has identified the primary ailment afflicting administrative law today: the absentee Congress. Two stories from the Wall Street Journal on the day I write (August 10, 2015) tell the tale. Page One has an article, “Industry, States Set to Fight EPA Rules,” describing planned legal challenges by a number states and interest groups against…

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Congress Incongruous — Response to Commentaries

I am grateful for the smart and informed commentaries on my Liberty Law Forum essay by John Samples, Gordon Lloyd, Michael M. Uhlmann, and those who posted shorter comments. They do not, I think, call for point-by-point author responses, but reading them altogether suggests that I should say a few words about the motivations and…

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Is It Curtains for Mandatory Public Sector Union Dues?

MADISON, WI - MARCH 12:  Thousands of demonstrators protest outside the Wisconsin State Capitol March 12, 2011 in Madison, Wisconsin. Organizers were expecting 200 thousand participants to attend the rally to voice their opposition to Governor Scott Walker public sector union reforms.  (Photo by Scott Olson/Getty Images)

In America’s experiment with unionized government, 2005 was a watershed year. California was then in the second year of the Age of Arnold. Elected on a pledge to put the Golden State’s dysfunctional fiscal house in order, Governor Schwarzenegger terminated the car tax on his first day in office. In his first year, the Republican and self-proclaimed Milton Friedman devotee successfully championed a balanced budget initiative and legislation putting a lid on spiraling worker-compensation costs. His prime time address at the 2004 GOP convention portrayed the Republican Party as dedicated to the principles of free enterprise and to “getting government off your…

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Clawing Back the Right of Free Speech

Many say the Roberts Court has been exceptionally supportive of First Amendment principles. As Michael Toth ably details in his Liberty Forum essay, these principles have been at issue in two recent cases, Knox v. SEIU Local 1000 (2012) and Harris v. Quinn (2014). Both dealt with public employee unions and both were decided in…

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Time to Drive a Stake Through the Heart of Mandatory Dues

Let me start with a disclaimer. I was once a member of a union—albeit involuntarily. During college, I responded to Southwestern Bell’s ad for a part-time, 20-hour-a-week graveyard shift job designing Yellow Pages advertisements. I was offered the position, but was required to join the union as a condition of my employment. Had I been…

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A Great Example of Judicial Restraint

The Supreme Court is slowly but surely demonstrating, over a series of cases, that the First Amendment cannot plausibly be squared with public sector unions’ court-awarded power to require payments from non-members. The Court’s 1977 decision granting unions that extraordinary power, Abood v. Detroit Board of Education, is an anomaly that should be overturned next…

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Public Servants and the Future of Reform: Michael Toth Responds

The state of Illinois, according to a recent article in the Chicago Tribune, is headed for a “pension doomsday.” So are other states. Across the country, unionized governments are a halfway house to nosebleed long-term pension and healthcare costs, giving politicians a Hobson’s choice. They can renege on existing collective bargaining agreements, hike taxes, or pare back social…

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How Constitutional Originalism Promotes Liberty

USA Constitution Parchment

What approach to constitutional interpretation best protects liberty? My task in this essay is to answer that modest question. Ultimately, there is no definitive answer that applies to all times and all places. But under the circumstances of the United States for the foreseeable future, originalism is likely to be the best bet. Both the structural and individual rights provisions of the Constitution generally protect liberty more when interpreted from an originalist standpoint than by applying any of originalism’s plausible competitors. Before even beginning to defend that position, we must first consider what is meant by “liberty.” Adherents of different ideologies…

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What “Liberties” Does the Constitution Protect?

In his famous, breakthrough speech at the Cooper Union in New York, Lincoln remarked on those black slaves who had not thrown in with John Brown. Even though, as he said, they were “ignorant”—even though they had no formal education—they had the wit to see that the schemes of this crazy white man would not…

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The Use and Abuse of Originalism

Ilya Somin’s thesis in his Liberty Forum essay is modest and hedged. Confining himself to “the circumstances of the United States for the foreseeable future,” he argues only that, among the “plausible competitors,” originalism is “likely to be” the theory of constitutional interpretation that best protects the components of  “ ‘negative’ liberty defended by most…

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Originalism and Legislative Deliberation

The point of Ilya Somin's able and humane Liberty Forum essay is to show libertarians how to deploy originalism as a doctrine to maximize “negative liberty” in America. He doesn’t claim to establish that negative liberty is good, or that its maximization accords with living in the truth or with dignity. It’s enough to say…

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Originalism and Liberty: Ilya Somin Replies

I would like to start by thanking Law and Liberty for hosting this symposium, and Hadley Arkes, Peter Lawler, and Ed Whelan for their thoughtful comments on my initial essay. I had planned to complete this reply much earlier. But just as constitutional originalism sometimes has difficulty taking account of new developments, so my original…

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Why Intellectual Property Rights? A Lockean Justification

Protect ideas and brainstorming

Today, the dominant justification for intellectual property (IP) rights is a broadly framed utilitarian theory.[1] But this was not always the case, and nor should it be. Both utilitarian and labor-desert theories offer robust normative justifications for IP rights, and historically they were both called upon by courts and commentators.[2] Unfortunately, widespread misunderstanding about labor-desert theories abounds today, especially in IP scholarship (see here and here). This essay thus details how a moral theory that justifies the right to property according to productive, value-creating labor equally justifies IP rights as property rights. This is John Locke’s property theory, and while his…

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Theory and Empirics: Where Do Locke and Mossoff Leave Us

In his Liberty Forum essay, “Why Intellectual Property Rights? A Lockean Justification,” Professor Adam Mossoff argues that Lockean property theory extends to intellectual property and provides justification for related laws.[1] Like Professor Mossoff, I do not see a sharp dividing line between property and intellectual property. Indeed, as I have discussed elsewhere,[2] there are significant similarities…

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As Newton Meets the A-Bomb, So Locke Meets Copyright

How does Locke’s theory of property apply to copyrights?[1] It applies in the same way that Newtonian physics applies to relativistic or quantum-scale events. It applies badly, in other words, giving uncertain and even misleading results. The essay under review, alas, offers ample proof of that effect. We would do better to reserve Locke’s property…

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Why “If Value, Then Rights” Is Untenable

Adam Mossoff says it is one of Lockean property theory’s “strengths” that “it recognizes that IP rights are fundamentally the same as all property rights in all types of assets.” I am not so sure that counts as a strength. Nor do I think Locke’s theory claims to recognize this. Indeed, understanding why Locke’s argument…

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Reasons to Be Cheerful: The Future of Legal Education

lawlibrary

This is a time of turmoil in legal education, and, to a large extent, in higher education generally. Enrollment in U.S. law schools has dropped to 1974 levels, yet there are more than fifty additional law schools now. Enrollments have fallen even at highly regarded schools, as illustrated by the announcement from Washington and Lee that it was cutting its entering class size to 100 (which translates into a roughly 25 percent cut from prior norms), increasing the payout from its endowment to 7.5 percent (i.e. drawing down principal – unless the university has some truly amazing investment managers who…

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Reasons to Be Gloomy About Legal Education

I agree with much in Dean Andrew Morriss’ Liberty Forum essay. And I endorse his hope that, in the future, legal academia will have greater differentiation. Yet my take on legal education’s prospects is much gloomier. Dean Morriss writes mostly about what should occur going forward, whereas I am watching what is happening right now.…

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The Non-Virtuous Circle

Dean Morriss’ essay, “Reasons to Be Cheerful: The Future of Legal Education,” is a welcome addition to the growing literature on what the present and future hold for law schools. He rightly emphasizes the role of competition and the need for greater diversity. And the stakeholders at Texas A&M University School of Law are indeed…

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The “Blue Ocean” for Law Schools

During the five years of the decline in JD applications, law schools have moved from self-defense to increased innovation and even restructuring. Within this emerging paradigm, Andy Morriss’ Liberty Forum essay offers some reason for optimism. Originally, when JD applications shrank and criticism grew, and the JD job market declined, law schools defended their traditional student-value…

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Still Cheerful about the Future of Legal Education

It was a privilege to have three such eminent commentators on my Reasons to Be Cheerful essay. Brian Tamanaha deserves enormous credit for being among the first to sound the alarm on the financial problems of legal education. Sam Estreicher is not only a pioneer in bringing bench, bar, and academy together through his programs…

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