A property case even more important than Kelo v. City of New London (2005) began to wend its way toward the Supreme Court a few weeks ago. The new case is Starr International Company, Inc. v. United States, and unless the Supreme Court repudiates the lower courts, the case will lay down a strange principle: that the government can unlawfully deprive shareholders of their ownership and control as long as it does not seize their shares.
Archives for October 2017
Harold Berman, the late Harvard law professor and author of the great book, Law and Revolution, captured children’s innate understanding of law: A child says, ‘It’s my toy.’ That’s property law,” he said. “A child says, ‘You promised me.’ That’s contract law. A child says, ‘He hit me first.’ That’s criminal law. A child says, ‘Daddy said I could.’ That’s constitutional law.” Thus, the law has categories that appear to map on to inborn modules of our nature.
As my daughter turns two this week, nothing has been more remarkable to this law professor than her already intense relation with rules, vindicating Berman. Over a year ago, I made a deal with her in the playground: if she got in the stroller when I told her to, I would give her a pacifier. Occasionally, I forget my side of the bargain, and the response is completely different in tone and sharpness than when she simply wants a pacifier. It is the natural cry of natural justice. A sense of property was present from the earliest times. I think “mine” was the second word we heard after “no.”
It is not only that children have a natural grasp of the justice of certain legal concepts, they also have a sense of the difficulty of drawing lines.
As a practicing Lutheran, I was surprised to discover that a then-proleptic application of Thaler and Sustein’s “nudge” was advanced over 1,600 years ago by Augustine when he advocated nudging the Donatists back into unity with the Catholic Church. I’m obviously not interested in nudging anyone into Catholicism, but I do think the episode an instructive one. Only inertia and status-quo bias, Augustine suggests, induced most Donatists to maintain their schism. They did not need severe punishment or suppression, Augustine argued, but a nudge, no more than a gentle poke in the ribs (to Augustine), to make the choices they already knew they should.
Catalonia has entered a critical phase in its attempt to secede from Spain, a process initiated by the regional government and parliament back in 2013. Secession in a Western European country in the 21st century necessarily draws attention. People all over the world feel that type of sympathy often induced by revolutionary movements in distant countries. But this is not a repetition of what we saw in the 18th, 19th, or 20th centuries. This is more complex.
Political analyst Henry Olsen has written an iconoclastic portrait of a man conservatives thought they knew: Ronald Reagan. Olsen, a veteran of several conservative think tanks in Washington, D.C., is a senior fellow at the Ethics and Public Policy Center who writes frequently for National Review. A stalwart of the GOP, he has a track record of highly accurate predictions of the outcomes of U.S. elections. In 2014 he coauthored (with Dante J. Scala) The Four Faces of the Republican Party: The Fight for the 2016 Presidential Nomination. His new book is his first as sole author. The Working Class Republican: Ronald Reagan and the Return of Blue-Collar Conservatism closely examines the entire span of the 40th President’s speeches, correspondence, and other writings and finds a decidedly non-libertarian Ronald Reagan—the Reagan who modeled himself on Franklin Roosevelt and was not hostile to, but supportive of, the social safety net.
For our latest installment of Conversations, Law and Liberty Associate Editor Lauren Weiner put questions to Olsen about The Working Class Republican. Here is our Q and A.
Readers of Law and Liberty may have noticed that I am a fan of Justice Antonin Scalia (for example, here and here). I am also an admirer of Robert H. Bork, whom my colleague John McGinnis has described as “the most important legal scholar on the right in the last 50 years.” Bork was a pioneer in both the field of antitrust law (with his influential 1978 book The Antitrust Paradox) and constitutional law, as the father of what we now call “originalism.” In his seminal 1971 article in the Indiana Law Journal, entitled “Neutral Principles and Some First Amendment Problems,” and in his later best-selling books, The Tempting of America (1990) and Slouching Towards Gomorrah (1996), Bork eviscerated the “noninterpretive” theories of constitutional law that dominated the legal academy in the 1960s and 1970s.
Marvel Comics is caught in a dilemma. The company, which went from near-bankruptcy in 1996 to one of the most successful movie studios in the world, first became well known in the 1960s for its depiction of superheroes who had human problems. Spider-Man, the Hulk, the X-Men the Fantastic Four and others didn’t fight their battles in the fantasy world of Gotham or Metropolis, but in New York City. They dealt not only with super-villains but with racism, self-doubt, adolescence, illness, and poverty. As a new book out from Taschen, The Marvel Age of Comics 1961-1978, shows, these characters were as much a part of the 1960s as the space race, antiwar college protests, and John F. Kennedy.
In the New York Times yesterday John Pfaff reflected on a serious problem at the Supreme Court. Increasingly its opinions rely on statements of facts that are later determined not to be true. And Professor Pfaff is also right that the Court as institution is not well designed to find facts. He notes correctly that opinions often rely for their assertions on amicus briefs of experts. But the obvious problem is that these briefs are generally pieces of advocacy seeking a particular result.
Unfortunately, his solution of creating a technical body of advisers to the Court for sorting out factual determinations is unwise. Experts can also make mistakes and in some areas have strong partisan and methodological biases. They would also necessarily work in secret.
Chip Mulaney and I have argued for a different solution: unless the facts on which a holding turns are obvious, stipulated, or reflect an adversarial process below, the Court should remand the case for factual findings by a trial court. It could then choose to hear any relevant parts of the case again on a full factual record.
One of the issues of central concern to libertarians is whether to have a state. Some libertarians are anarcho-captialist libertarians, who reject the state, while others are minimal state libertarians, who favor a limited state. While the anarcho libertarians have thought a fair bit about how a stateless world would work, there has been relatively limited thinking, among both libertarians and nonlibertarians, about specific institutions that might replace government regulation within a world that includes a state. In my view, two significant examples are arbitration and where businesses supply some of the rules (such as the rules that a mall might…
Editor’s note: David Deavel, editor of St. Thomas University’s quarterly, Logos, invited me to contribute an essay on Orestes Brownson‘s remarkable defense of religious liberty in his 1864 essay “Civil and Religious Freedom.” Posted below is a modified version of my essay published in the Fall edition of Logos.
Orestes Brownson’s wonderful essay “Civil and Religious Freedom” (1864) provides a remarkable philosophical and constitutional defense of religious liberty. The essay bears the particular merit of bridging the traditional American understanding of religious freedom as an individual right with the corporate notion of freedom of the church, which acts, Brownson argues, as the shield of religious liberty. In this way, Brownson provided an original, robust defense of American constitutionalism and religious freedom.