Archives for March 2017
Daniel Horowitz’s Stolen Sovereignty: How to Stop Unelected Judges from Transforming America (2016), published before the presidential election, is proving to be prescient—even prophetic.
Modern fiat currencies depend for their value on confidence in the laws of the states that issue them. Some nations, like the United States with its established central bank, inspire substantial confidence relative to nations that may debase for their currency for political objectives. But no nation can absolutely insulate its currency from political manipulation.
That is what gives Bitcoin the opportunity to succeed as a currency. But what gives users confidence in Bitcoin? It is precisely the fact that the rules regulating its currency do not depend on the currency law of any nation state. Bitcoin provides an example of order without law or at least without currency law.
Order without law is not unknown to society. Social norms often regulate behavior without the benefit of formal law. Rules of etiquette tell people how to behave at table without causing offense. Coordination rules help people walk down the street without bumping into one another. In a major work, Robert Ellickson showed that social norms, not law, governed responsibility in a community of cattle ranchers and farmers for the damage caused by cattle straying on the range.
But while order without law is possible without software, software can improve on the enforcement of that order. The beauty of Bitcoin’s design is that its mechanism for enforcement can not only be more powerful than the informal mechanisms that enforce social norms but even more powerful in some respects than the formal mechanisms of law.
I Am Not Your Negro, a new documentary about the writer James Baldwin, is an example of sympathetic magic. More precisely, it’s an attempt at sympathetic magic. As explained by Sir James Frazier in his classic The Golden Bough, sympathetic magic is the effort to absorb the attributes of something by contact. To gain the power of your enemy, you eat his heart. While the film’s subject is James Baldwin (1924-1987), it tries to give moral virtue to the modern Black Lives Matter movement by shoehorning footage of recent protests over police brutality with vintage footage of the New York novelist,…
As the Senate prepares to question Judge Neil Gorsuch for possible appointment to the Supreme Court, my former colleague Eric Posner asks: “Is Gorsuch a Hamburgerian?” Posner thereby attempts to set up Gorsuch by associating him with . . . not really me, nor my scholarship, but a boogeyman of Posner’s imagination.
The version of my scholarship Posner presents to the world is almost unrecognizable: “Hamburger is anti-elite”; “Hamburger is anti-foreigner”; “Hamburger is anti-executive.” These views bear no resemblance to my scholarship or my personal opinions, and it therefore is necessary to state my views as they really are.
At first blush, Northwestern University law professor Stephen B. Presser’s just-released survey of legal education, Law Professors: Three Centuries of Shaping American Law, seems to lack a clearly defined mission. Presser, a self-described paleoconservative who says he was influenced by the journal Chronicles, where he has long served as legal affairs editor, has produced a treatise-length book (with 473 pages of text and nearly 1,400 footnotes) on a subject—legal academia—that many people regard as a bastion of left-wing ideology. Published by a scholarly press (West Academic) at a relatively hefty ($48) cover price, the book is aimed, at least in part, at a lay audience: “the general American public.”
Equal parts legal history, biography, and primer on jurisprudence, Law Professors defies categorization. Is it a text book, a reference work, a tutorial for pre-law students, a compilation of biographical profiles, a cautionary tale about the modern legal culture, or a synthesis of all the foregoing? The author calls it “a love letter to the teaching of law,” his vocation for over 40 years.
The object of political correctness is to make the obvious unsayable, or at least sayable only under the threat of a torrent of criticism or abuse. This does violence to the mind and spirit: those who refrain from objecting to the false pieties of political correctness (which are intoned within organizations as regularly as in public) come to despise themselves.
Bitcoin, the premier cybercurrency, is at an all-time high in price and an all-time low in volatility. In a new article, Bitcoin: Order without Law in the Digital Age, Kyle Roche and I compare Bitcoin to fiat money and show why and how it may succeed in the long run in becoming a currency relied on by millions. In this post, we focus on the flaws in fiat currency that may enable Bitcoin’s success. In the next we will describe how Bitcoin is succeeding.
In 1924, Georg Friedrich Knapp, the father of monetary theory, wrote that “[t]he soul of currency is not in the material of the pieces, but in the legal ordinances which regulate their use.” The state must instill confidence through law that its currency will retain value. And it is the uneasy relation between a state and its currency that gives Bitcoin the opportunity to grow. Citizens in some nations rightly distrust their currencies, precisely because they have little confidence in the legal ordinances and institutions, like central banks, that regulate their use. For instance, in the recent past nations, like Argentina and China, have undermined the value of their currencies and yet also tried to prevent citizens from using other more stable and reliable currencies to maintain the value of their assets.
Bitcoin provides many people in monetarily oppressive regimes with a better alternative.
Recently, John McGinnis and I completed a paper entitled The Constitution and the Language of the Law. The basic question addressed is whether the Constitution is written in ordinary language or in the language of the law. But what turns on this question? The Supreme Court’s recent controversial decision of Pena-Rodriguez v. Colorado illustrates why it matters and how the failure to follow the language of the law tends to confer discretion on the justices. A Colorado jury convicted Pena-Rodriguez of a crime, but following the discharge of the jury two jurors stated that another juror had expressed anti-Hispanic bias towards…