Peter–the Barnett quote in your post is apt. If “judicial restraint” means a Rooseveltian judicial deference to unconstitutional New Deal legislation, then judicial restraint is not a good thing.
From the libertarian point of view, the federal Constitution as written is fairly libertarian, at least compared to the leviathan state into which the original central government has morphed. It is for this reason that we want judges to adhere to the strict text of the Constitution: because it is a way to help hold the federal government to its original, more-limited scheme. “Originalism” then–or opposition to activism–has primarily an instrumental value (as I argued in this Hastings Constitutional Law Quarterlyreview essay–which I wrote, coincidentally enough, after the journal approached me, at Professor Barnett’s suggestion). Because our Constitution is relatively libertarian, we want the federal government to abide by the limits the Constitution places on it. In such a context, activism is likely to be a lead to unlibertarian results because it will mean invention of new powers or relaxations on the limits placed on the state. We can hardly be surprised that the judicial branch of the state tends to decide in a pro-state manner; but to the extent judges feel bound by the text of the Constitution, the state’s growth will be somewhat impeded (albeit, one disadvantage of such as system is that giving some lip service to the “rule of law” cover or myth helps to legitimize the state’s actions). [continue reading…]
I worked with patent lawyer Steve Mendelsohn when I practiced law in the mid-1990s at Schnader Harrison in Philadelphia. He was a witty writer; one of his funnier pieces is this one, “Confessions of a Law School Asshole,” published when he was a law student at U. Penn in The Penn Law Forum (Sept. 26, 1990). I love his description of “asshole bingo,” and his question in class, “What’s a magistrate?”
I was interviewed yesterday by Mark Edge, as part of his “Edgington Post Interview Series,” for his Free Talk Live radio show, about my Mises Daily article, “Reducing the Cost of IP Law.” The interview is lasts about 35 minutes, and starts at 2:02:36 in the Jan. 20, 2010 show (MP3). Edge conducted an excellent interview–very informed and interesting. And, like many others, he’s come around to the anti-IP position.
Thank God! The draft of the Iraqi Bill of Rights just shows America is helping to spawn liberty in the mid-east. For example, the neo-con pro-Israeli hawks will no doubt love these provision: “Any individual with another nationality (except for Israel) may obtain Iraqi nationality after a period of residency … An Iraqi may have more than one nationality as long as the nationality is not Israeli.” [continue reading…]
Christopher Hitchens has a review here of Douglas Feith’s book War And Decision, which I’m currently reading. It is an outstanding book, serious, scholarly, reasoned, and fair, although of course Feith has an opinion which he makes clear. And Hitchens is right that there is something deeply dishonest about the way the President’s opponents (i.e., the press) have refused to even note the book’s existence.
This “outstanding” (and “serious,” natch) book, according to Hitchens, makes [continue reading…]
In response to the simpleminded but common comment and legal positivistic sentiment that international law is not real or that international law does not exist, because there is no sovereign state and enforceable legislation, see, inter alia, Anthony D’Amato, “What ‘Counts’ as Law?,” in Law-Making in the Global Communkty, Nicholas G. Onuf, ed. (1982), Northwestern Public Law Research Paper No. 11-02, and many other treatises and papers. Also Is international law real? Professor José Alvarez weighs in (“almost all 0:18 states comply with almost all international law almost all the time. 0:22 Most people focused on the almost, but the fact is that they do comply it’s 0:28 just not front page news when they do”); International Law Explained | Kal Raustiala | Big Think; Philip Allott – The True Nature of International Law.
Re Eric’s and Anthony’s comments about Paul on international law (Anthony wrote: “The fact that even many in the audience cheered Ron’s comment on international law (the others probably ignorantly thought he meant the UN, not the great libertarian tradition of international codes of civilized behavior such as the law of neutrals and non-aggression) is heartwarming and breathtaking.”) — on a libertarian Republican email list, one of the posters criticized Paul for referencing international law–in particular Paul’s condemning the war on Iraq because it was illegal under international law. Why would any liberty-lover oppose the rules of international law as another limit on the behavior of states? The rules of international law, being based on “the general principles of law recognized by civilized nations” (as well as on international custom and treaties), and far less corrupted by legislation than municipal legal systems havebecome, are far more civilized and libertarian. A return to international law, just like a return to constitutional limits, would move any modern state in the direction of liberty.
So the neocons just hate international law. They hate the idea of the state being limited by anything–a constitution, international law, whatever. They seem not to understand that the United States is bound by international law. The do not recognize the limitations it places on waging war, and that this is a good thing. They apparently are oblivious to the fact that all treaties, all international relations, are governed by international law–that without the international law principle of pacta sunt servanda, for example, no treaties between nations would be binding–including treaties the US has signed. They apparently believe that a President, a country, should flout international law–that it should not abide by international agreements; that we should not recognize international law as binding.
It’s a wonder more neocons aren’t anarchists, if they believe the 200 nations of the world co-exist in an utterly lawless order.
As I note in my article “Radical Patent Reform Is Not on the Way,” Mises Daily (Oct. 1, 2009), there is a growing clamor for reform of patent (and copyright) law, due to the increasingly obvious injustices resulting from these intellectual property (IP) laws. However, the various recent proposals for reform merely tinker with details and leave the essential features of the patent system intact. Patent scope, terms, and penalties would still be essentially the same. In the second article of this two-part series, “Reducing the Cost of IP Law,” Mises Daily (Jan. 20, 2010), I propose various reforms to the existing patent system–short of abolition–that would significantly reduce the costs and harm imposed by the patent system while not appreciably, or as significantly, reducing the innovation incentives and other purported benefits of the patent system. I list these changes below in generally descending order of importance, without elaboration, as they are discussed further in “Reducing the Cost of IP Law”:
The upcoming documentary, Copyright Criminals, shows how copyright has outrageously criminalized the use of sampling, which has been disproportionately popular in hip hop music. In this, it calls to mind the racially disproportionate impact of drug laws on minorities…
Yet another ridiculous result of the US legal system: Spamhaus fined $11.7 million; won’t pay a dime reports the case of the heroic UK spam-fighting blacklist site Spamhaus, which was sued in the US by spammer e360. Spamhaus simply refused to participate and let e360 win a “default judgment,” since default judgments are not recognized in the UK. As Spamhaus notes: [continue reading…]
Here’s a good place to start: http://reason.com/archives/2008/01/16/who-wrote-ron-pauls-newsletter
Lew wrote truly racist newsletters (not denunciations of abuse of executive power by Abraham Lincoln, but really ugly stuff), put Ron Paul’s name on them, and sent them out. And then let Ron twist in the wind when they came to light. Not a good … See Morefriend, I’d say. And definitely a racist. If you want, there’s a lot more to find with just a few minutes of sleuthing. (Or you could even ask Lew. He used to describe himself as a “racialist.” Ask him about it sometime.) [continue reading…]
As I note in my article “
Recent Comments