• About
  • Contact
  • Staff
  • Home
  • Essays
  • Forum
  • Podcasts
  • Book Reviews
  • Liberty Classics

March 19, 2013|Austin, Federalist Society, Judge Edith Jones, Lynn Baker, Sam Bagenstos

Showtime in Austin

by Michael S. Greve|

Earlier this month, the Federalist Society held its always-excellent Annual Student Conference in Austin, Texas. Among the highlights: a panel on federal grants and transfers, featuring Lynn Baker (University of Texas Law School), Sam Bagenstos (Michigan Law School), and yours truly. Graciously moderated by Judge Edith Jones (Fifth Circuit). The tape is here. 

Professor Baker’s remarks provide a concise summary of the state of the law on federal spending after NFIB v. Sebelius. Sam Bagenstos elaborates on the theme. Plus, he has a truly terrific, eminently fair-minded paper on the Medicaid piece of NFIB here. (He presents an “uneasy defense” of the decision. It’s the only remotely plausible defense I’ve seen.) The principal effect of the opinion, he argues, has been to strengthen the bargaining position of states vis-à-vis the feds. That strikes me as precisely right.

My further, oft-rehearsed view: contrary to NFIB and conservative lamestream opinion, I don’t think there’s a coherent theory of federal spending “coercion.” And even if that theory existed it wouldn’t do any good. The problems of federal spending programs have nothing to do with coercion; they have to do with freakish incentives. Nothing in NFIB or “coercion” theory does anything to address those problems.

Correction: an informed and courteous reader has pointed out that my earlier post on pharmaceuticals and federal preemption contains a significant error. The Supreme Court vote in Wyeth v. Levine was 6-3, not 5-4. Thus, Justice Thomas’s concurrence wasn’t exactly decisive. Reminder to self: never do things from unaided memory. Apologies, and thanks.

Michael S. Greve

Michael S. Greve is a professor at George Mason University School of Law. He is the author of The Upside-Down Constitution (Harvard University Press, 2012).

About the Author

The Rhetoric of Judicial Opinions
Crisis of the Calhoun United

Recent Popular Posts

  • Popular
  • Today Week Month All
  • Assessing Our Frayed Society with Byung-Chul Han June 12, 2018
  • Originalism and Sovereign Immunity May 24, 2019
  • Gouverneur Morris on the Preamble to the Constitution March 13, 2019
  • Skin in the Review: The Hidden Asymmetries of Taleb's Skin in the Game May 29, 2018
  • Stuck With Decadence March 16, 2020
Ajax spinner

Related Posts

Related

Book Reviews

A Mirror of the 20th-Century Congress

by Joseph Postell

Wright undermined the very basis of his local popularity—the decentralized nature of the House—by supporting reforms that gave power to the party leaders.

Read More

The Graces of Flannery O'Connor

by Henry T. Edmondson III

O’Connor’s correspondence is a goldmine of piercing insight and startling reflections on everything from literature to philosophy to raising peacocks.

Read More

Liberty Classics

Rereading Politica in the Post-Liberal Moment

by Glenn A. Moots

Althusius offers a rich constitutionalism that empowers persons to thrive alongside one another in deliberate communities.

Read More

James Fenimore Cooper and the American Experiment

by Melissa Matthes

In The American Democrat, James Fenimore Cooper defended democracy against both mob rule and majority tyranny.

Read More

Podcasts

Stuck With Decadence

A discussion with Ross Douthat

Ross Douthat discusses with Richard Reinsch his new book The Decadent Society.

Read More

Can the Postmodern Natural Law Remedy Our Failing Humanism?

A discussion with Graham McAleer

Graham McAleer discusses how postmodern natural law can help us think more coherently about human beings and our actions.

Read More

Did the Civil Rights Constitution Distort American Politics?

A discussion with Christopher Caldwell

Christopher Caldwell discusses his new book, The Age of Entitlement.

Read More

America, Land of Deformed Institutions

A discussion with Yuval Levin

Yuval Levin pinpoints that American alienation and anger emerges from our weak political, social, and religious institutions.

Read More

Recent Posts

  • The Just Restraint of the Vicious

    For some contemporary criminal justice reformers, devotion to ideology leads to illogical conclusions about human nature and character change.
    by Gerard T. Mundy

  • Too Immature to be Punished?

    When I look back on my own life, I think I knew by the age of ten that one should not strangle old ladies in their beds.
    by Theodore Dalrymple

  • A Badge of Discrimination

    The British National Health Service has spoken: Wear the badge or declare yourself to be a bigot.
    by Theodore Dalrymple

  • A Judicial Takeover of Asylum Policy?

    Thuraissigiam threatens to make both the law and the facts in every petition for asylum—and there are thousands of them—a matter for the courts.
    by Thomas Ascik

  • The Environmental Uncertainty Principle

    By engaging in such flagrant projection, the Times has highlighted once again the problem with groupthink in the climate discussion.
    by Paul Schwennesen

Blogroll

  • Acton PowerBlog
  • Cafe Hayek
  • Cato@Liberty
  • Claremont
  • Congress Shall Make No Law
  • EconLog
  • Fed Soc Blog
  • First Things
  • Hoover
  • ISI First Principles Journal
  • Legal Theory Blog
  • Marginal Revolution
  • Pacific Legal Liberty Blog
  • Point of Law
  • Power Line
  • Professor Bainbridge
  • Ricochet
  • Right Reason
  • Spengler
  • The American
  • The Beacon Blog
  • The Foundry
  • The Originalism Blog
  • The Public Discourse
  • University Bookman
  • Via Meadia
  • Volokh

Archives

  • All Posts & Publications
  • Book Reviews
  • Liberty Forum
  • Liberty Law Blog
  • Liberty Law Talk

About

Law & Liberty’s focus is on the classical liberal tradition of law and political thought and how it shapes a society of free and responsible persons. This site brings together serious debate, commentary, essays, book reviews, interviews, and educational material in a commitment to the first principles of law in a free society. Law & Liberty considers a range of foundational and contemporary legal issues, legal philosophy, and pedagogy.

The opinions expressed on Law & Liberty are solely those of the contributors to the site and do not reflect the opinions of Liberty Fund.
  • Home
  • About
  • Staff
  • Contact
  • Archive

© 2021 Liberty Fund, Inc.

This site uses local and third-party cookies to analyze traffic. If you want to know more, click here.
By closing this banner or clicking any link in this page, you agree with this practice.Accept Read More
Privacy & Cookies Policy
Necessary Always Enabled

Subscribe
Get Law and Liberty's latest content delivered to you daily
  • This field is for validation purposes and should be left unchanged.
Close