• Judge Douglas H. Ginsburg: ‘I Don’t Think We’ve Had Any [Constitutional] Crises in My Lifetime”
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    Judge Douglas H. Ginsburg: ‘I Don’t Think We’ve Had Any [Constitutional] Crises in My Lifetime”

    No civilized person wants to live in a society without a lot of privacy in it. Supreme Court nominee Robert Bork’s 1987 confirmation hearings changed everything— maybe forever. According to lawyer and Supreme Court blogger Tom Goldstein, “because they legitimize the scorched earth ideological wars that have since become the norm.” After the Senate rejected Bork, President Reagan turned to a 41 year old judge named Douglas H Ginsburg, a recent appointee to the Court of Appeals for D.C. who, unlike Bork, didn’t have a long judicial record for the Senate to pick over. It wasn’t to be. Yesterday the nominee for the U.S. Supreme Court admitted he smoked marijuana…

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

  • Stare Decisis: Precedent vs the Constitution
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    Stare Decisis: Precedent vs the Constitution

    Precedent does not trump the constitution, even when the court says it does. Stare decisis is Latin for “to stand by things decided.” In short, it is the doctrine of precedent. According to the Supreme Court, stare decisis “promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” In practice, it is the judicial policy of sometimes adhering to a prior decision even when it was wrong. As the majority put it in the 1992 case of Planned Parenthood vs Casey, it is the practice of adhering to a prior decision “whether or…

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

  • The Ten Rules of Free Speech and College Students: Free Speech Rules (Episode 7)
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    The Ten Rules of Free Speech and College Students: Free Speech Rules (Episode 7)

    Lots of recent free speech debates have come up in colleges. Here are 10 rules for how the freedom of speech applies to college students. 1. Students of public colleges may not be disciplined for their speech, unless it falls into the narrow First Amendment exceptions, such as true threats of criminal attack or face-to-face personal insults that are likely to start a fight. That’s true even if the speech is seen as evil or offensive, whether racist, sexist, religiously bigoted, unpatriotic supportive of crime or whatever else. For instance, a federal appeals court held that public university students can’t be disciplined for putting on an ugly woman skit at…

  • 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…

  • Why The Silk Road Case Matters – An Interview with Ross Ulbricht’s Mom
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    Why The Silk Road Case Matters – An Interview with Ross Ulbricht’s Mom

    hey guys so I’m here with Lyn Ulbricht Ross’s mom and we’re just hanging out in our room at the end of world crypto con it’s been a it’s been a fun a long week but we’re gonna chat and hang out so thanks for coming on the show I don’t know if this is a show but you know always fun to talk with you oh yeah it’s been great hanging out with you so for those who we’re not gonna really dig into the whole story of Ross because that’s something that you know will link to some other interviews you’ve done below what we’re gonna talk about…