The current Liberty Law Talk is with Amity Shlaes on Calvin Coolidge. There are many impressive elements in Shlaes' new biography of the thirtieth president. Of note is Coolidge's discipline and refusal to place tax dollars at the service of numerous projects: agriculture, pensions, public works, etc. Federal coffers were flush, why not spend it, many asked? Coolidge frequently chose the pocket veto to say no to them. He vetoed over 50 bills while in office. So Ronald Reagan is adored by advocates of limited government, but it was Coolidge who actually cut the government, halved tax rates and didn't…
Archives for March 2013
The Wall Street Journal’s editorialists have rung the alarm bell on “The Threat of ‘Innovator Liability.’” They’re right to call attention to this latest weed in the liability landscape, but they’ve missed a big piece of the story.
Wyeth Inc. (a big pharmaceutical company) invented, patented, and until 2002 sold an acid reflux drug called Reglan. The drug has since been sold by a generic company. Danny Weeks claims to have suffered bad side effects from taking the generic stuff, which he insists was mislabeled. Naturally, he sued; naturally, for fraud and failure to warn; naturally, in state court (Alabama). Less naturally, he sued not the generic manufacturer but Wyeth.
Over at Balkinization, Jack Balkin has a quite interesting post about a distinct modality of constitutional argument: arguments from the future. As Jack says:
This idea– that we should decide constitutional cases based on how we think the future will think of what we do today– is what I call an argument from the future. It is an argument about history, but it is not an argument about original intention or original meaning.
In David Schorr’s well-researched and well-written book, The Colorado Doctrine: Water Rights, Corporations, and Distributive Justice on the American Frontier, he argues that the primary driver in the formation of western US water rights, and indeed, property rights to critical natural resources, such as mineral land, was distributive justice, rather than efficiency.
The Friedman Foundation has published an intriguing report on The School Staffing Surge: Decades of Employment Growth In America’s Public Schools. The numbers are astounding:
Between fiscal year (FY) 1950 and FY 2009, the number of K-12 public school students in the United States increased by 96 percent while the number of full-time equivalent (FTE) school employees grew 386 percent. Public schools grew staffing at a rate four times faster than the increase in students over that time period. Of those personnel, teachers’ numbers increased 252 percent while administrators and other staff experienced growth of 702 percent, more than seven times the increase in students.
Increases between 1992 and 2009: students, 17%; teachers, 32%; staff, 46%. In 2009, the nation’s public school systems employed 3.2 million teachers and 3.1 million non-teaching staff. All this, for what appears to be essentially no net gain in educational achievement.
In a recent post, I discussed the fact that administrative agencies combine prosecutorial (executive) and judicial power, with the result that agencies are judges in their own cases. In this post, I want to propose a solution to the problem.
One way to avoid the combination of executive and judicial power is to have two different entities decide these matters. Interestingly, this actually exists in an agency — the National Labor Relations Board. The Board adjudicates cases under the National Labor Relations Act. The General Counsel of the agency, who is independent of the Board, makes the prosecutorial decisions. Thus, executive and judicial power are separated.
But there is another way of separating executive and judicial powers that would require a more significant change in agencies. One could employ Article III administrative courts instead of Administrative Law Judges (ALJs) to adjudicate. Article III administrative judges would have life tenure like other Article III judges. They would also not engage in any prosecutorial functions nor would they be supervised by officers who did.
We come now to the final and perhaps most important part of McCraw’s Founders and Finance: the practical effects of Hamilton’s political economy. Here is where Hamilton’s ultimate legacy is often said to be. The precedent of the idea of a national bank or ultimate regulatory authority over money became, at this point in time, inextricably part of American politics. This is not to say that the idea of national banking was inextricable institutionally. Andrew Jackson ended the second Bank of the United States, and the idea of the Independent Treasury held sway until the National Bank Acts of the Civil War. But Hamilton had established the first political precedent of national involvement in money and finance. That history and its supposed success would be continually asserted to pave the way, at least in part, for the Federal Reserve System in the early twentieth century.
This is an absolutely marvelous work of fan fiction written in the Harry Potter universe. But what distinguishes it from other first rate fan fiction is the underlying approach of the author Eliezer Yudkowsky of the Less Wrong blog. Yudkowsky is a rationalist. He hopes to make people more rational by getting them to avoid mistakes caused by cognitive biases and to rely on more reliable methods of reaching correct results.
Yudkowsky is well versed in this literature of cognitive biases and rational methods. While I find this literature interesting, Yudkowsky makes it enormous fun by working it into his retelling of Harry Potter’s first year at Hogwarts. Yudkowsky has changed the story so that Petunia married a brilliant biochemist rather than Vernon Dursley, and Harry grew up reading science and science fiction to become an incredible prodigy. Harry decides that he will use the methods of science to study magic.
I don’t read all that much fiction, but I made it through 87 chapters and more than 1000 pages of the novel – so that is saying something. Unfortunately, the novel is not yet finished, but is still being written, and so I am in the unexpected situation of waiting impatiently with the many other fans for the next batch of chapters. Its like a 19th century serialization of a novel.
Over at originalismblog, Mike Ramsey has a generous, fair-minded, but critical comment on my most recent musings about the “dormant” Commerce Clause and modern-day originalists’ resistance to the notion. He’s entirely right that my blog post doesn’t do enough to defend the dormant Commerce Clause, and he raises the right sort of textual and structural objections.
The Upside-Down Constitution contains an extended defense of the doctrine on what I think are originalist grounds. Today, though, something completely different—a consequentialist point that, I think, conservatives and libertarians haven’t considered sufficiently.