In the Winter 2012 Independent Review, I review David Bernstein’s Rehabilitating Lochner: Defending Individual Rights Against Progressive Reform. Here’s how it starts:
Few Supreme Court cases receive more scorn in U.S. law schools than Lochner v. New York (198 U.S. 45), the 1905 decision that struck down a New York law limiting the number of hours that bakers could work as a violation of the Fourteenth Amendment’s Due Process Clause. It’s safe to say that most legal academics and judges today believe that the Lochner Court engaged in extraordinarily outrageous “judicial activism” motivated by a devotion to extreme libertarian ideology, big business, or both.
In Rehabilitating Lochner: Defending Individual Rights Against Progressive Reform, George Mason University law professor David Bernstein makes the case that the conventional view is wrong. He provides persuasive evidence that Lochner does not deserve to be singled out as an especially activist or offensive case and that Lochner’s Progressive critics were the real activists with a much more disturbing agenda.
Read the rest.
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by Jacob Huebert on November 28, 2011
in Law
Several years ago, I wrote a review of The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom by Cato Institute chairman Robert A. Levy and Institute for Justice co-founder William Mellor. As its subtitle suggests, the book criticizes twelve U.S. Supreme Court decisions that are especially offensive from a libertarian perspective, such as Wickard v. Filburn, Korematsu v. U.S., and Kelo v. City of New London.
Because I’m a libertarian myself, I agreed with most of their criticisms of the twelve decisions.
I had reservations, though, about their proposed remedy: “judicial engagement” on liberty’s behalf — that is, getting judges on board with (for example) the idea that Congress’s powers under the Commerce Clause are much narrower than the Supreme Court has said they are since the New Deal era. This struck me as naive. Judges, after all, are part of the federal government, and the President and Congress both try to ensure that the people they put on the bench believe in maximum executive and legislative power. Judges haven’t increased government power because libertarian lawyers didn’t put the right arguments in front of them; they’ve increased government power because that’s what they were put on the bench to do.
In a response to my review, Levy and Mellor claimed that I was “far too cynical” — which only cemented my view that, for self-described libertarians, these two gentlemen weren’t nearly cynical enough about the federal courts. In fact, they seemed to have a faith in “good government” that is antithetical to libertarianism.
Lately, however, I’ve come to think that, whatever Levy and Mellor’s personal attitudes may be (it’s possible that I misread them), favoring “judicial engagement” for liberty does not require one to be naive about government and therefore is not contrary to the spirit of libertarianism.
[click to continue…]
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by Jacob Huebert on September 2, 2011
in Law
When writing legal briefs, should lawyers use “he” as an indefinite pronoun or something more politically correct, such as “he or she”? I’ve weighed in on this in the past, and the Above the Law legal blog quotes me in this post on the subject.
My view is that, unless you know a particular judge’s preference, you should use gender-neutral language regardless of your personal views. No judge is likely to be offended by gender-neutral language (especially if you do it in a careful way that doesn’t call attention to itself), but some may be offended by the use of “he” alone. Because your job as a lawyer is to win the case for your client — not to advance your own agenda regarding grammar, feminism, or political correctness — you need to do what is least likely to harm your client. So “he or she” it is.
There is, however, one exception: It is always okay to refer to a generic criminal defendant as “he.”
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by Jacob Huebert on July 22, 2011
in Law
Today the New York Times has a debate among legal scholars considering whether three years of law school, followed by the bar exam, should be required to enter the legal profession.
The best contribution is from libertarian George Leef, who argues that we should allow anyone to take the bar exam. As he points out, in the nineteenth and early twentieth centuries, most lawyers didn’t go to law school at all; they just apprenticed and learned how to practice law by working in a law firm. There’s no reason why this couldn’t be so now — except, of course, that the legal profession has been cartelized by the American Bar Association. Leef’s proposal would be an appropriate first step toward the libertarian ideal, which would not even require a bar exam.
Meanwhile, it’s funny to see law professors try to defend the status quo, arguing, almost in as many words, that students should be thrilled to pay $200,000 for three years of left-wing indoctrination and shouldn’t care so much about whether they’ll be able to practice law afterward — which probably they won’t be able to, at least not at a salary that comes anywhere near those of their privileged professors.
Cross-posted at the Mises Economics Blog.
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by Jacob Huebert on March 18, 2011
in History, Law
In the latest Quarterly Journal of Austrian Economics, now online, I review UCLA law professor Stuart Banner’s book Who Owns the Sky?: The Struggle to Control Airspace from the Wright Brothers On.
Banner’s book is outstanding because it presents the history of air law in an engaging, accessible way. But it’s also flawed because it accepts without much question that it was necessary for the U.S. government to assert jurisdiction over U.S. airspace and to regulate the aviation industry. At first, federal control might seem appropriate because, given the interstate nature of flight, it might be simpler to have uniform licensing and other rules for the whole country rather than a patchwork of state laws. But, in practice, federal control led to regulation of the airline industry, benefiting big airlines at everyone else’s expense. The book doesn’t really consider that cost.
Still, it’s a great book and a perfect starting point for anyone interested in this area of the law.
Read the review. Buy the book.
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The legal cartel would like to abolish judicial elections — and if it can’t do that, it would like to control the information voters get as much as possible, to maximize lawyers’ influence and minimize everyone else’s.
Their latest idea in Ohio is to remove judges’ party affiliation from the primary ballot. In this piece from Ohio public radio, I give some thoughts (around 1:30) on why that’s a bad idea.
The main reason is because taking away party labels deprives voters of some of the most valuable information about a judicial candidate. Republican judges are likely to have one judicial philosophy, Democrats another. In most respects, there’s “not a dime’s worth of difference” between the two parties, but when it comes to judges at the state level, the differences are real and important, and the effects of who controls the bench can be huge.
My interest in this topic may seem out of place among my usual radical libertarian views (including extreme skepticism about democracy), but it’s not. Throughout U.S. history, the Hamiltonians (and eventually the Progressives) have wanted to prevent people from choosing their judges and make them submit to unaccountable rule by their “betters,” while the Jeffersonians have resisted. That by itself tells you a lot about which side people who care about liberty should root for in this fight.
I’ll have more on this soon.
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I love this article by Paul Craig Roberts on the “true cost” of the Iraq war and think everyone should read it.
But there’s one sentence in this otherwise-outstanding piece to which I take exception. Roberts writes: “The fascist Republican Federalist Society has put enough federal judges in the judiciary to rule that the president is above the law.”
This is nonsense.
First, let’s tackle the claim that the Federalist Society is “fascist” and “Republican.”
The Federalist Society was formed by law students who were frustrated by the left’s dominance at law schools. They created the organization to provide a forum for alternative voices: namely, those of conservatives and libertarians.
Here’s how the Federalist Society functions. There’s a national headquarters in Washington (a red flag, I’ll grant you), there are student chapters in almost every law school, and there are lawyers’ chapters in various cities.
The student and lawyers’ chapters generally do one thing: host lectures and debates. These events feature speakers ranging all the way from people Roberts would probably call “fascist” to anarcho-capitalist libertarians such as Randy Barnett and Walter Block. One frequent Federalist speaker is Roberts’s fellow columnist at Antiwar.com, Doug Bandow, whose lecture topics include the American Empire.
Who decides who will speak at these events? Each chapter’s members. If the members tend to be more conservative, they may bring in more conservative speakers. If the members tend to be more libertarian, they may bring in more libertarian speakers.
If the balance seems to tip in favor of conservatives overall, it’s only because there are, of course, many more conservatives than libertarians among America’s law students, lawyers, and law professors. In fact, it’s safe to say that libertarians are featured at Federalist Society events in rather gross disproportion to the percentage of its members who are libertarians. Why? Probably because it’s a group that was founded for the purpose of having alternative ideas expressed and holding intellectually stimulating events. I should add that leftist speakers often appear at Federalist debates, too — because the purpose is to debate ideas, not to cram some Republican agenda down people’s throats.
The national office of the Federalist Society puts on a symposium every year where top conservative and libertarian legal scholars speak — and this usually does include a Republican Supreme Court justice. Nonetheless, libertarians are there, and they are given a respectful hearing like everyone else. Incidentally, at the last symposium, Judge Janice Rogers Brown — who isn’t perfect but certainly satisfies my big-tent notion of who counts as a libertarian — quoted from Thomas Woods’s book Meltdown, which it’s safe to say is not a favorite of fascists.
I should add that anyone can attend these events (usually the student ones are free), and audio and video of many of them are posted online as well, so anyone who is interested can see what the Society is all about.
The Federalist Society also sponsors a law journal, The Harvard Journal of Public Policy. A recent symposium on the financial crisis included an essay by Ron Paul attacking the Fed and one by Richard Epstein bashing Keynesianism and his colleague Richard Posner’s embrace of it.
I’m uncompromising in my libertarianism, but I see nothing at all wrong with conservatives and libertarians coming together in an organization like this to have their voices heard. It’s not much different than the Libertarian Party teaming up with the Green Party to improve ballot-access laws to get a place at the table — though the Federalist Society seems like a more worthwhile endeavor, since it’s about ideas, not politics.
Which brings me to Roberts’s other claim: that the Federalist Society somehow “put” judges on the bench. This is absurd.
I don’t know what basis Roberts could have for thinking the Federalist Society wields such power. Undoubtedly many (but far from all) Republican judges have some connection to the Federalist Society, either as members or as speakers at past events. But why wouldn’t they? It’s the only national organization for conservative lawyers and law students out there. And why would a Republican president need the Federalist Society to choose “fascist” judges for him? Couldn’t he just pick them himself? And isn’t he responsible for who he appoints in any event? And aren’t there many political factors affecting who gets on the bench that have nothing to do with Federalist Society membership? Like so many other alleged secret conspiracies, this makes no sense.
Libertarians should be glad the Federalist Society exists, and if they’re lawyers or law students, they should get involved and make sure the ideas that are important to them are part of the conversation. If “fascists” would come to dominate it someday — which they certainly don’t now — it could only be because libertarians weren’t doing their job.
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These quotes from 1976 and 2010 (via “Snowflakes in Hell“) suggest an answer.
Then:
“Our ultimate goal — total control of handguns in the United States — is going to take time. My estimate is seven to ten years. The first problem is to slow down the increasing number of handguns being produced and sold in this country. The second problem is to get handguns registered. And the final problem is to make the possession of all handguns and all handgun ammunition — except for the military, policemen, licensed security guards, licensed sporting clubs, and licensed gun collectors-totally illegal.”
–Pete Shields, July 1976, President of National Coalition to Control Handguns (which later became Handgun Control Inc. and then the Brady Campaign)
Now:
“It is settled law. If I were taking a law school exam today, I would say, yes, you have got an individual right to have a gun in your home for self-defense.”
– Paul Helmke, President of the Brady Campaign, June 28, 2010
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At the Volokh Conspiracy blog, Randy Barnett says libertarian political activists shouldn’t waste their efforts on nullification, as Tom Woods urges in his new book, because it’s a “sketchy” theory.
I find it remarkable that Barnett would consider nullification a waste of time. Barnett has devoted an extraordinary amount of effort to trying to use the Fourteenth Amendment’s Privileges or Immunities Clause to protect libertarian rights — even though the Supreme Court established in 1873 that the Clause does no such thing, and the Court hasn’t wavered in that view ever since, even when it had a clear opportunity to do so in McDonald v. Chicago. In short, the Privileges or Immunities Clause has never been used to do what Barnett wants it to do, and there is no reason to think it ever will be, unless you think some future U.S. president is going to nominate a Court full of Clarence Thomases.
Meanwhile, what has nullification done? As Woods shows in the book, it’s been used numerous times throughout U.S. history to defend individual rights against the federal government. Recently, for example, it has been used in California to protect medical marijuana users there — after Barnett was unable to do so through his preferred means of fighting in the federal courts, in Gonzales v. Raich.
Who’s wasting their time?
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