Against Judicial Minimalism

At the beginning of this term of the Supreme Court, Cass Sunstein has praised judicial minimalism. Professor Sunstein argues that the justices should decide cases as narrowly as possible: “Minimalists . . .  insist on small steps and narrow, unambitious rulings. They want to resolve the specific problem at hand, but without pronouncing broadly on liberty or equality, or on the system of checks and balances.”

So described, minimalism is the antithesis of a principled jurisprudence. First, minimalism does not offer a method for discerning the Constitution’s meaning. One does not need to be an originalist who believes that the meaning of the Constitution is fixed at the time it was enacted to recognize that an interpretive theory has to give account of how it is following the meaning of the Constitution. It is that meaning which should govern the case, and the relevant principles may be either broad or narrow depending on the meaning. For instance, if one follows the original meaning that the term “session” in the Recess Appointments Clause is limited to the intersession of Congress, the holding will necessarily rule out recess appointments in all cases but appointments made at the intersession.

Second, minimalism is incompatible with the rule of law. Deciding cases based on their peculiar facts gives little guidance to citizens as to what their rights and obligations are. Indeed, the reductio ad absurdum of minimalism is to decide the case of A v. B for A or B without giving any reasons at all: that approach surely resolves the case by making as little law as possible!

Read More

Administrative Law in Turmoil: New Coke Causes Indigestion

Sir Edward Coke

Harvard Law School’s dynamic AdLaw duo (Cass R. Sunstein and Adrian Vermeule) has struck again. In The New Coke: On the Plural Aims of Administrative Law  the authors take aim at the insurgent fundamental assault on the legitimacy of the administrative state, under the banner of “the separation of powers.” The challenge is playing a growing role in separate [Supreme Court] opinions, and on occasion, it finds its way into majority opinions as well. Justice Clarence Thomas is the principal advocate, but he has been joined, on prominent occasions, by Justice Antonin Scalia and  sometimes by Justices Samuel Alito and Chief…

Read More

The Guilty and the Oppressed


Growing up the son of a criminal defense lawyer who represented all sorts of unsavory people led to many strange experiences in my youth. I accepted collect phone calls from imprisoned felons, many of whom insisted, even to me—a kid answering the call—that they had been “wrongfully convicted.” I listened to my father rail against the abuses of unchecked executive branch power, as well as the ethical corner-cutting and sometimes flat out lying by the police. And I learned to balance the moral conflict—we could live in a world in which law enforcement did break rules and abuse power, while at the same time people who looked guilty, and were probably guilty, still deserved their legal rights. Innocence, my father always said, went out with Adam and Eve, but not guilty is a different kettle of fish.

Read More

Inescapable Logic on Immigration

USA America Citizenship Application with glasses

There is no greater sign of what a good and generous people Americans are than our troubles over immigration.

Were Americans a downright mean people, we would have no compunction about shipping illegal immigrants back to their countries of origin en masse. Yet that is politically unacceptable. Why? Because most of us would find it morally unacceptable, particularly for people who have been here for long time and have begun to put down roots.

Kicking out someone who has just crossed the border without our permission is another matter altogether. But plenty of Americans object even to that. If these are poor people, arriving in our prosperous country to improve their lot in life, as most of our ancestors did, who are we to object?

Read More

Officer Removal, German-Style

Businessmen in rain

Last week, Germany’s chief prosecutor—Generalbundesanwalt Harald Lange—got himself fired. It’s a big enough deal to occupy the front pages and, in coming months and years, armies of administrative lawyers and scholars. The precise facts and circumstances are a bit murky, and the story is still unfolding. Enough is known, though, to invite some rule-of-law thoughts and a few cautious transatlantic comparisons and contrasts.

Read More

The Rule of Law Is Positively Therapeutic

Making bread yeast dough, chef kneading in a bakery kitchen

The English invented the rule of law. To this day they’re better at it than the rest of the world, including many English-speaking peoples who have borrowed this stuff.

Like many financial agencies across the globe, U.K. authorities have ended up with big chunks of money in settlements with misbehaving banks. The so-called Libor settlement alone netted the Chancellor of the Exchequer the equivalent of a billion bucks. What to do? As the Wall Street Journal reports, the British government decided to give the money away, to a group that’s re-enacting the Battle of Agincourt and to other worthy causes:

Read More

The Adhoc-racy and the Rule of Law in the 2008 Financial Crisis

Paulson, Bernanke, And FDIC Chairman Make Statement On Financial Markets

When surveying the vast wreckage of the 2008 financial crisis, many classical liberals worry that the most profound damage done was to the rule of law in America.  Though it is difficult to pin down the concept with great precision, the core of the rule of law is simple: we have a government of laws, not men.  Our officials must follow rules that have been publicly and clearly set forth in advance rather than acting on their own caprice, and they are not welcome to simply make up rules as they go along and declare their conduct lawful in retrospect.  Without adherence to this precept, government’s actions can have no basis for legitimacy.

If we closely scrutinize what the Treasury Department, Federal Reserve, and other agencies of the federal government did in response to the recent financial crisis, there is no avoiding that they made a mockery of the rule of law.  Indeed, as Lawrence H. White puts it, “The approach of Federal Reserve and Treasury officials during this crisis, unfortunately, has been to consider every possible remedy but applying the rule of law.”

Read More

We’re the Government. Trust Us.


Earlier this week the Supreme Court heard oral argument in Mach Mining LLC v. Equal Employment Opportunity Commission (transcript and briefs).  It’s a fairly big deal for employers, and another small window in the administration’s quaint views of administrative law.

The case concerns the EEOC’s enforcement practices. After the agency files a notice against an employer, conducts its investigation, and finds “reasonable cause” to proceed, it “shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.” 42 U.S.C. 20002-5(b). What happens if they don’t do that prior to filing suit, or do a snow job on the employer? Nothing, says EEOC. The provision is unreviewable.

Read More

Reducing Violence through Technology and the Rule of Law

The great social scientist Stephen Pinker has observed a long-term secular decline in violence, despite the relentless media attention given to killings at home and abroad. Domestically, our state and local governments can drive down the number of murders and assaults even more, if they will take further advantage of technology and strengthen the adherence to the rule of law. We need to continue to innovate but also protect our greatest legal inheritance.

Technology has already contributed significantly to the decline in violence in our cities. CompStat, a management system for police developed in New York City, deploys police officers at the optimal places and times to cut down on crime. This largely computerized service is now used by police departments around the country. And it will improve with ever better data and algorithms.

Surveillance cameras in public spaces not only help solve crimes but also help deter them because people know they are being watched.

Read More