• Simple Rules v. Regulation [Introduction to Common Law] [No. 86]
    Articles,  Blog

    Simple Rules v. Regulation [Introduction to Common Law] [No. 86]

    When one wants to talk about examples of coordination through simple rules, they’re two kinds of transactions. One of them are sort of outright transfers of goods and the other is cooperative behavior. When you’re dealing with an outright transfer of goods, it’s not as easy as you think. You have to figure out when delivery is going to have to take place. You’re going to have to figure out what conditions have to be satisfied in order for the buyer to take the goods. These will typically involve warranties, having to do with the ownership of the good called warranties of title, or warranties of merchantability. And it’s extremely…

  • The Importance of Structure v. Parchment Barriers [No. 86]
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    The Importance of Structure v. Parchment Barriers [No. 86]

    We cannot underestimate the importance of structure to preserving liberty. As Justice Scalia was fond of saying, “Any tinpot dictator can have a Bill of Rights.” The Bill of Rights for the Soviet Union was extraordinarily capacious, the Bill of Rights for the North Korean regime is extraordinarily capacious. But without structural protections, Bill of Rights are mere “parchment barriers,” in the words of the Federalist. They’re mere parchment barriers because they’re very easy to transgress without structural mechanisms keeping those in power in check. So it’s a structure that allows the different institutions of government to check and balance each other. It’s structure that allows the ambition of members…

  • Articles

    Is It Time to Repeal the Jones Act? [POLICYbrief]

    The Jones Act is the Merchant Marine Act of 1920. It’s named after Wesley Jones, the senator from Washington, and he justified the, his legislation on the grounds that we needed to better sealift capacity and a ship-building capacity. The act comes into being as a direct result of World War I. In 1914 when the world goes to war, the United States finds itself in a very precarious situation. The U.S. does not have a large ocean-going merchant marine. And so, the Merchant Marine Act of 1920 aims to ensure that the United States never finds itself in that position where in time of war or conflict, it’s basically…

  • Private Rights and Public Resources in Roman Law [No. 86]
    Articles,  Blog

    Private Rights and Public Resources in Roman Law [No. 86]

    Well it turns out that there are two kinds of problems that you have to worry about in any regime of property rights. One of them is the question that one person will take this property right and use it to blockade the way in which others can use things of their own. Now what legal systems instinctively knew, is that if you allow a blockade, it’s not going to encourage productive use of a resource. What it’s going to do is to allow one individual to make sure that somebody else doesn’t have access to that resource unless it turns out that they buy their way in. You then…

  • What is the Lemon Test?  Lemon v. Kurtzman [No. 86]
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    What is the Lemon Test? Lemon v. Kurtzman [No. 86]

    The Lemon Test is a three-part test that the Supreme Court uses to determine whether a law violates the Establishment Clause of the First Amendment, which says that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” The three parts of the Lemon Test are as follows: first, a law must have a secular purpose; second, the law’s principal or primary purpose can neither advance nor inhibit religion; and, finally, the government may not be excessively entangled in religion. The Lemon Test came from the 1971 Supreme Court case, Lemon v. Kurtzman. At issue was whether the government could provide state funding to…

  • Brutus v. Publius: The Fight Over the Judiciary
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    Brutus v. Publius: The Fight Over the Judiciary

    By 1787, a crisis seemed on the horizon. The existing government of the Union was not working well. The Articles of Confederation was an alliance between pre-existing states. The Articles relied on one state, one vote, one branch of government, which meant it wasn’t really a government. Both the advocates of the Constitution and their opponents were dissatisfied with the Articles. The difference between them was the opponents of the new Constitution thought the Articles could cure themselves; they could pass a series of amendments that would empower the national government. And the Federalists concluded that what we had to do was start over. “Instead of confining themselves to the…

  • Positive Law v. Natural Law [Introduction to Common Law]
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    Positive Law v. Natural Law [Introduction to Common Law]

    One of the things that one deals with in positive law is the question of whether or not it’s a force for good or a force for evil. When the positive law is engaged in setting out formalities to allow voluntary transactions to take place, it works for the good. Uh, but the old maxim which says that, “Whatever is pleasing unto the prince has the force of law” carries with it the real danger that tyrannical rulers will essentially announce that natural law principles need not be followed, and that the state can impose upon individuals whatever rules that it wants. So, to take the most ancient example slavery…

  • Is Net Neutrality Good Policy?
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    Is Net Neutrality Good Policy?

    In early 2015, the FCC decided three things in its net neutrality order: 1) Cable and phone companies can’t block any websites 2) They can’t discriminate against some websites, and third, no paid prioritization, or what the average person would call fast lanes on the internet. If you look at how the internet and America operates previous to these net neutrality regulations, there was no digital dystopia. We didn’t see cases of ISP’s engaging in any competitive conduct such as blocking lawful content from being delivered over the internet. And if there were evidence of systemic failure, I would be the first one as an FCC official, to stand up…

  • The English Rule & the American Rule [POLICYbrief]
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    The English Rule & the American Rule [POLICYbrief]

    The English rule as it applies to the payment of attorneys’ fees means that the loser is going to pay the attorney’s fees for the other side. That’s very different than the American rule. The American rule is that you don’t pay the other side’s attorney’s fees if you lose, you only pay your own lawyer’s fees. It’s certainly become a very important distinction between the way court systems work in the United States and in the rest of the world, and frankly, you can measure that by the number of lawyers in the United states versus the number of lawyers in other countries that also have bipartisan legal systems.…