• Is Roman Law a primitive system? [No. 86]
    Articles,  Blog

    Is Roman Law a primitive system? [No. 86]

    It’s important to understand that when you’re talking about Roman law it may be an ancient system but it is not a primitive system. If you were to try to compare Roman law to Roman science, if you were trying to figure out whether or not you wanted to study the theory of evolution or the theory of reproduction or the theory of heavenly bodies using Greek and Roman science you would probably not get very far. If you start looking at the Roman text, it represented an enormous advance in systematization of over every previous system of law anywhere on the face of the globe. Instead of having a…

  • Elected v. Appointed: Senators & the Seventeenth Amendment [POLICYbrief]
    Articles,  Blog

    Elected v. Appointed: Senators & the Seventeenth Amendment [POLICYbrief]

    The framers had two things in mind with the original composition of the Senate who they essentially thought that in contract to the House, which would always be populist and sort of defined by hardscrabble political campaigning, the Senate instead would elevate the best people; business people, war heroes, lawyers; and so they would bring probity and judgment into the body. The House and the Senate were two parts of one whole, the U.S. Congress, and the House was elected every two years. They had smaller districts, and people could register their satisfaction or dissatisfaction pretty easily. They wanted to make sure that popular sentiment didn’t really determine whatever the…

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    Corporations and the First Amendment: Free Speech Rules (Episode 6)

    Here are the five rules of free speech and corporations. Rule one. Corporations have First Amendment rights. The Supreme Court’s first decision protecting individual’s free expression rights came in 1931. It’s first decision protecting a corporation’s free expression rights came just five years later in 1936. That decision involved a newspaper corporation. But the courts first decision protecting a non-media business corporation’s free expression rights came five years after that in 1941. From the 1950’s onward, many court decisions protected for-profit corporations. Indeed the very first American court decision striking down a state’s statute on free speech grounds took place in 1894. And it protected the rights of a corporation.…

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    Regulatory Takings Law: Penn Central v. City of New York [No. 86]

    It’s very common for landowners to bring takings challenges against zoning laws and against environmental restrictions. In all these cases, the landowners say that they’ve suffered a loss of property because they have right to use their property. The major case in this field is a case called Penn Central Transportation versus the City of New York. The company, Penn Central, was complaining that New York City was telling it it could not build an office building on top of Grand Central Railway, and Penn Central wanted to argue, “you have to look at the air rights that we had in our land, and those have been totally extinguished.” A…

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    Elected v. Appointed: Senators & the Seventeenth Amendment [POLICYbrief]

    The framers had two things in mind with the original composition of the Senate who they essentially thought that in contract to the House, which would always be populist and sort of defined by hardscrabble political campaigning, the Senate instead would elevate the best people; business people, war heroes, lawyers; and so they would bring probity and judgment into the body. The House and the Senate were two parts of one whole, the U.S. Congress, and the House was elected every two years. They had smaller districts, and people could register their satisfaction or dissatisfaction pretty easily. They wanted to make sure that popular sentiment didn’t really determine whatever the…

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    The Clean Power Plan: The EPA & Climate Change Policy

    President Obama issued an executive order containing a climate action plan that directed EPA to reduce greenhouse gas emissions from power plants that produce electricity. The Clean Power Plan was the culmination of that executive action. It was a regulation promulgated under EPA’s authority to reduce the amount of fossil fuels that would be combusted for power in favor of renewable sources. Traditionally, most electricity in the United States was made through combusting coal or natural gas and power plants. The Clean Power Plan required a significant reduction in the amount of energy that could be generated in that way. It’s not really a pollution control program, it is an…

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    Regulating Rideshare: Uber & Lyft in Austin, TX

    I moved my family to Austin in 2000. The population since we got here has doubled. Austin has, for the size of the city, one of the most mediocre transit systems in America. Traditionally, regulation has been put in place for all the best of intentions. I’ve been a Council Member since January of 2015. My concern was getting in and saying, look, let’s get some technical solutions to fixing the traffic congestion. It’s meant to lower prices or offer us more choices or provide higher quality goods or solve information problems. But instead the new City Council chose to focus on Uber and Lyft. When Uber and Lyft first…

  • “Enforce the Law,” But Only if it Doesn’t Violate the Constitution
    Articles,  Blog

    “Enforce the Law,” But Only if it Doesn’t Violate the Constitution

    We recently released a report showing that our Second Amendment president has actually ramped up enforcement of unconstitutional federal gun laws when you compare him to gun-grabbing President Obama during his last year in office Well, we got a lot of hate mail for that one. Of course, a lot of it was just silly. Typing, “That’s B.S.,” in all caps isn’t really an argument. But several people brought up something more substantive saying the president has to enforce the law no matter what. One guy said if the president starts picking and choosing which laws to enforce, it will “break the system.” Now look – considering virtually everything the…

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    What Power Does Congress Have to Regulate Commerce? [No. 86]

    The founders were extremely concerned with the promotion and regulation of commerce. Commerce being the buying and selling, trading, movement and transport of goods and people from one place to another, which were necessary in order to provide for economic prosperity. There was, of course, three types of commerce that were covered by the national powers of the Congress, one was the power to regulate commerce with foreign nations. Secondly, the power to regulate commerce among the several states, and thirdly commerce with Indian tribes, leaving a fourth category of commerce that was not given to Congress to regulate and that was commerce that existed wholly within a state. Once…

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    Contenders in the Debate over the Construction Zone [No. 86]

    One of the central questions about the extent of the construction zone, is the extent to which the Constitution has a legal meaning. Which is necessarily a technical meaning. The concepts are probably polished, as it were, compared to the concepts in ordinary language. The question is how was the Constitution understood? What kind of meaning did it have at that time? Maybe the context was thin, maybe it was thick. That’s I think a major debate in Originalism that’s going on right now. So, let me tell you about some of the contenders in that debate. To begin with someone who has the thinnest view of originalist meaning is…