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 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 wanted…

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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)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 ParchmentUSA 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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Responses

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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Evaluating the Moynihan Report on the Negro Family 50 Years Later

Moynihan

A half-century after its publication, the Moynihan Report—The Negro Family: The Case for National Action—endures. It does so for many reasons, its prescience and courage chief among them. But the Report is more than a faithful contemporaneous portrait, and deeper than an accurate projection. It is a political document in the noble sense, reflecting searching and enduring principles about the nature of society and the place of political institutions within it. Assessments of the Moynihan Report at this milestone should therefore be more than historical. Its method of capturing truth in generality would enrich social science in 2015.  Its insights could…

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Responses

Two Cheers for the Moynihan Report . . . Or One

Knowing what we know today about family breakdown among Americans and across the modern industrialized world, it seems that Daniel Patrick Moynihan’s The Negro Family: The Case for National Action mistakes the particular for the general and might reflect a misunderstanding of the decline of the family. Moynihan’s 1965 Report emphasizes the ways in which…

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From Moynihan to Murphy Brown

If there is one thing Pat Moynihan taught us, it is that talking about the family can be fraught with peril. Published at a time when nearly one in four African American children was born outside of marriage—seven times the rate for whites (see Figure 1)—the Moynihan Report gave a “faithful contemporaneous portrait” as Greg…

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Owning the American Past

One of the advantages of looking at The Negro Family: The Case for National Action after 50 years is perspective. Perspective is a form of knowledge that allows us to see from a different vantage point and to bring new information to bear on a problem. In responding to Greg Weiner’s essay, I bring the…

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The Moynihan Report at 50: Greg Weiner Replies

In assessing the Moynihan Report at 50, I have the privilege of far more thoughtful interlocutors than Daniel Patrick Moynihan—who was subjected to a digest of calumnies for the rest of his life—enjoyed on the original product. I am grateful to Scott Yenor, Robin Fretwell Wilson and Susan Love Brown for their thoughtful commentaries. Yenor…

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Fools Rush In?

Don’t get into theological arguments with Masters of Divinity, and don’t argue Daniel Patrick Moynihan with his most astute intellectual biographer! That is a good rule of prudence, but fools rush in . . . sometimes. Moynihan is mostly known in conservative circles for his emphasis on the limits of social policy, and my question concerns…

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The Anglosphere: A Viable Global Actor or Simply a Culture?

anglosphere

Given that I am of Scottish and English descent, grew up in Australia, did my doctorate in Britain, and now live and work in America, I am about as much a product of what is often called “the Anglosphere” as it gets. That such a sphere exists, culturally speaking, has never seemed in doubt to me, even beyond the common linguistic and historical connections to the British Isles of this grouping of nations. Though I attended Catholic schools in Australia, for example, we learnt far more about British history than that of the Catholic Church (or Australia for that matter). The…

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The Yanks Made Us Do It

The central question addressed by Samuel Gregg in his timely ruminations about the Anglosphere is how ready and willing its member nations are to “collectively shape the global order” through collaboration beyond that in which they already engage. His chief contention is that, while the nations of the Anglosphere jointly possess the necessary economic, demographic,…

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Snubbing the Anglosphere

Samuel Gregg rightly concludes that the political cooperation required for the nations of “the Anglosphere” to act as an effective international bloc rests upon choices by leaders. Cultural ties and longstanding security relationships open possibilities, but pursuing them requires conscious decision. To elaborate on Gregg’s analysis, one would have to consider what presuppositions and concerns…

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Crisis of Identity: Here, There, and in the Canuckosphere

Samuel Gregg’s thoughtful Liberty Forum essay on the prospects for a functional “Anglosphere” leaves me perplexed. He is no Pollyanna on the matter, but to my mind he underestimates some monumental intellectual and practical difficulties confronting statesmen who would try to move the English-speaking peoples from ad hoc cooperation in various areas, animated by real…

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Where Did the Noble Lawyer Go?: Looking for Cicero in the Boardroom or on the Billboard

Gregory Peck Dies at 87

Marcus Tullius Cicero, born to a little-known family of Rome’s minor nobility, rose to become the Republic’s great defender, chief conciliator, and enduring interpreter of its laws. His murder for opposing the tyranny of Mark Antony and Octavian, or Caesar Augustus, and the clarity of his writings on the law and republican ideals of Rome have rather obscured his weaknesses in memory.[1] Cicero remains the model of the lawyer as hero, not only standing for the ideals of law against its enemies but transcending class and interest to do so. It is no surprise that the writers of English law who…

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Responses

Teaching the Law’s Moral Purposes

I am an admirer of Steve Sheppard and of his scholarship. His book on the ethical obligations of lawyers is not just as a reminder of the necessity for lawyers to comply with lawyerly standards. More than formal compliance with the canons of ethics is needed today.[1] Serious consideration of the true moral purposes of…

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Wherefore Art Thou Cicero?

With “Where did the Noble Lawyer Go?: Looking for Cicero in the Boardroom and on the Billboard,” Professor Stephen Sheppard has provided us with a provocative, as one expects from the editor of the three-volume Selected Works of Sir Edward Coke,[1] rumination on the decline of the legal profession. He contrasts the lawyer of today…

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Cicero, Demythologized and Disenchanted, and Still a Voice Worth Heeding

I am fascinated with Stephen Sheppard's essay on Cicero and the modern American lawyer.  In a sense, he is calling me back to those ideals I held so dear as an entering one-L a long time ago. Cicero, it is not too strong to say this, is one of the reasons I went to law school.…

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Rebuilding a Ciceronian Legal Culture

It is daunting to be read by genuine scholars whom one admires.  The thoughtful comments, elaborations, and criticism of Stephen Grosby, Charles J. Reid, and Dick Helmholtz have surely given the reader much more wisdom and provocation than did my essay. Despite the many truths of my commentators’ criticism, Liberty Law Forum and its editor Richard…

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Meanings or Decisions? Getting Originalism Back on Track

SCourt

For what is the point of drawing up dumb, silent statements of laws, if anybody may attach a new meaning to the words to suit his own taste, find some remote interpretation, and twist the words to fit the situation and his own opinion? John Locke For originalists, must the guiding criterion of constitutional interpretation be original meaning (whether understood in intentionalist or public meaning terms)? You might thing the answer has to be yes. That is just what it means to be an originalist: to connect constitutional interpretation to original meaning. I think the question is more complicated—and more fraught. Ironically,…

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Responses

Between the Original Decision and Abstract Originalism: An Unbiased Approach to Original Meaning

Introduction It is an honor to participate in this forum with my colleague Steve Smith and with Will Baude and Steven Sachs – all of them friends. Steve Smith’s essay continues his criticism of the new originalism in favor of the old originalism – a position that Steve previously defended in his paper “That Old-Time…

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Originalism and the Positive Turn

For more than a decade, the “New Originalism” has been identified with a focus on the Constitution’s original meaning (not its original intent) and with the admission that original meaning won’t perfectly constrain judges. Steven Smith challenges that version of originalism. The challenge should be rejected, but in the course of rejecting it we may…

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Saving Originalism’s Soul

What shall it profit originalism, to gain academic adherents but lose its soul? As Steven Smith tells it, the “new originalism” has made a disastrous Faustian bargain, with Jack Balkin playing Mephistopheles. It may have gained sophistication and intellectual respect, but it’s lost its ability to resist falsehood and manipulation—and lost the firm roots that…

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Decisional Originalism: A Response to Critics

I’m sincerely honored that Mike, Will, and Steve (whose expertise in these matters, both individually and collectively, greatly exceeds my own) would make the effort to comment on my essay.  The comments advance powerful objections to “decisional originalism,” as I’ve reluctantly called it.  Even so, I’m not persuaded– not yet anyway-- to abandon the idea. …

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Competency in Administration: James Q. Wilson and American Bureaucracy

FOLDER FOR DOCUMENTS

Ever since the reelection of President Obama, bureaucrats have been behaving badly. Conservatives may have steeled themselves to expect bad performance from bureaucrats at all times; but even fans of federal authority should be concerned about recent bungling and abuses. The Affordable Care Act (“Obamacare”) required millions of Americans to sign up for health-insurance policies, but last year’s rollout of the federal website failed disastrously and has been limping ever since. The Veterans Administration turned out to be falsifying records to conceal long waiting times and poor care at hospitals for military veterans. When it was revealed that the Internal Revenue Service…

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Responses

How to Make the Bureaucracy More Accountable

Jeremy Rabkin has written a fine essay about the continuing relevance of James Q. Wilson’s 1989 book Bureaucracy: What Government Agencies Do and Why They Do It. I have been fortunate enough to benefit from Wilson’s analysis in my own writing on the Justice Department’s Office of the Solicitor General. His framework showed why the…

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Bureaucracy and Some Bureaucracy Problems

It’s Bureaucracy’s twenty-fifth birthday. To celebrate, let’s state some basic facts that correspond with James Q. Wilson’s thinking. Americans want a lot from their government. We want more than we’ve wanted before. It doesn’t ultimately matter where these desires come from (rising standards of living? the inner logic of democracy? interest groups? politicians?). What matters…

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When They’re Too Good at Their Job . . .

The 25th anniversary of James Q. Wilson’s Bureaucracy: What Government Agencies Do and Why They Do It marks an appropriate occasion to reflect on the contributions of this work to our understanding of bureaucratic behavior and performance, and the extensive—and, at least in some areas, growing—presence of the administrative state in the lives of American…

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Falling Down

All the participants in this discussion seem to agree that James Q. Wilson’s book, Bureaucracy, still offers valuable insights, a quarter century after its initial publication. At the same time, we all seem to agree that Wilson’s book didn’t prepare readers for the scale of dysfunction we now see in the federal bureaucracy. We have…

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