Topic: Cato Publications

Our Broken Judicial Nominations Process

This month at Cato Unbound, we’re discussing the federal judicial nominations process: Is it broken? (Spoiler: Yes!) How did it get that way? And what can be done to fix it? 

Our lead essayist is John R. Lott, Jr., author of the new book Dumbing Down the Courts: How Politics Keeps the Smartest Judges Off the Bench. His lead essay charges that the growth of the federal government’s regulatory reach has raised the stakes in the judicial nominaitons process: Now it’s a much graver matter when the other party’s judges end up on the bench – particularly if the nominees in question are especially smart and persuasive. Lott writes:

Think that attending a top university and graduating at the top of the class is the key to your success? Not if you’re headed for a federal judgeship. In fact, today the most accomplished candidates are the most likely to be rejected. And this phenomenon has only gotten worse, with the quality of judges declining over the last four decades…

A smart, persuasive judge might convince other judges to change their votes on a case. Judges who can write powerfully worded decisions also are more likely to be cited more frequently in other judges’ decisions and to influence their decisions.

The president wants to nominate influential judges to successfully push the positions he values. His political opponents, however, naturally fear such judges—and, therefore, vehemently oppose their appointments.

Agree? Disagree? We’ll see some of each this month at Cato Unbound, and we invite you to follow the conversation as it develops. Coming up we’ll have essays by Professor Michael Teter of the University of Utah, on January 15; Clint Bolick of the Goldwater Institute, on January 17; and John O. McGinnis of Northwestern University, on January 20. A conversation among all four participants will then be held through the end of the month.

Lastly, if you like Cato Unbound, be sure to like us on Facebook and follow us on Twitter.

This Month at Cato Unbound  Sex Work and the Law

This month’s Cato Unbound tackles an issue as old as humanity, and maybe even older: Sex work has been a part of nearly all human societies, even despite frequent prohibitions. Well, some say, we should allow it – but we should regulate it very heavily.

Lead essayist Maggie McNeill takes a much more libertarian view: simply allow it. Sex work is “not a crime, nor a scam, nor a ‘lazy’ way to get by, nor a form of oppression,” she writes. “It is a personal service, akin to massage, or nursing, or counseling, and should be treated as such.” As a former call girl and madam, she draws on personal experience, as well as the remarkable body of knowledge found at her blog, The Honest Courtesan

Obviously we wouldn’t be a journal of debate without some vigorous dissent, and it will come this month from a panel of three other experts in the field: Ronald Weitzer is a sociologist at the George Washington University; Dianne Post is an international legal advocate who works on gender-based violence; and Steven Wagner is the president of Renewal Forum, a nonprofit opposed to human trafficking. 

Be sure to stop by and see what they have to say over the coming week; feel free to reply in the comments. And if you like what you read, you should also follow us on Facebook and Twitter for regular updates.

A Conspiracy against Obamacare

A Conspiracy Against Obamacare coverLast week, A Conspiracy Against Obamacare: The Volokh Conspiracy and the Health Care Case was released, of which I am proud to be the editor. The book compiles the discussions and debates about the Affordable Care Act that occurred on the legal blog the Volokh Conspiracy, supplemented with new material. The posts are stitched together into a narrative structure. As a result, you can see the constitutional arguments against the Affordable Care Act develop in real time, from before the law was passed all the way to the Supreme Court. 

The book documents a bellwether moment in the history of legal academia: A legal academic blog influencing major Supreme Court litigation. And not just major Supreme Court litigation, but a case that went from a much derided challenge to the biggest and most watched case in decades. As former Solicitor General Paul D. Clement, who expertly argued the case before the Court, kindly wrote in the foreword, “The Constitution had its Federalist Papers, and the challenge to the Affordable Care Act had the Volokh Conspiracy.”

The contributors are Randy E. Barnett, Jonathan H. Adler, David E. Bernstein, Orin S. Kerr, David B. Kopel, and Ilya Somin, most of whom are closely associated with Cato in one way or another.

In the introduction, I discuss the constitutional arguments against the law in a more abstract way, as well as describe how the law is destined to fail due to poor design. We are seeing the beginning of those failures now, but I fear we ain’t seen nothin’ yet.

It was not much commented on at the time–the administration and the law’s supporters were too busy spiking the ball–but the Supreme Court’s decision will speed up the law’s inevitable failures. As I describe in the introduction:  

Due to the chief justice’s unpredictable opinion, we are now likely stuck with a law that I fear will seriously damage the health of Americans. What’s more, attempts to further centralize power will not stop at the individual mandate. When the law fails, as I predict it will, it will be said that the federal government lacked enough power to make it work. The chief justice’s opinion gives people a real choice whether to comply with the requirement to purchase insurance or pay a “tax.” Many people will not, and as the price of insurance goes up, more and more people will choose to remain uninsured. This will certainly be called a “loophole.” Similarly, the Court also gave states a choice about whether to comply with the Affordable Care Act’s Medicaid expansion. Another “loophole.” Finally, the states that don’t create health care exchanges will also throw wrenches in the law’s overall scheme. “Loopholes” all around. Having freedom of choice in deeply personal health care decisions, however, is not a loophole.

When the time comes to revisit the Affordable Care Act, those choices by free, sovereign entities (citizens and states) will be blamed for the law’s dysfunctions. To paraphrase philosopher Robert Nozick, liberty disrupts patterns. Free choice inevitably upsets the carefully crafted plans of Washington.

As a solution to the law’s problems, more power will be proposed. A few voices, such as many who write for the Volokh Conspiracy and those of us at the Cato Institute, will strenuously argue that the problem is not a lack of power but a lack of freedom. I am not optimistic, however, that very many entrenched bureaucrats and politicians will locate the problem in the mirror rather than in the freedoms of the American people.

If the Affordable Care Act keeps going south at this rate, we may need to prepare to have that debate sooner than we expected. 

Cato at the Federalist Society Convention

The Federalist Society came into being in 1982 after a small group of conservatives and libertarians, concerned about the state of the law and the legal academy in particular, gathered for a modest conference at the Yale Law School, after which two law-student chapters were formed at Yale and at the University of Chicago. Quickly thereafter chapters sprung up at other law schools across the country. And in 1986 those students, now lawyers, started forming lawyer chapters in the cities where they practiced. Today the Federalist Society is more than 55,000 strong, its membership drawn from all corners of the law and beyond.

Toward the end of this past week many of those members gathered in Washington for the society’s 27th annual National Lawyers Convention, highlighted on Thursday evening by a gala black tie dinner at the conclusion of which Judge Diane Sykes of the Seventh Circuit Court of Appeals treated the audience to a wide-ranging interview of Justice Clarence Thomas. The convention sessions, concluding late Saturday, have now been posted at the Federalist Society’s website. As a look at the various panels and programs will show, this year’s theme, “Textualism and the Role of Judges,” was addressed in a wide variety of domains.

Concerning the role of judges, classical liberals and libertarians, who have long urged judges to be more engaged than many conservatives have thought proper, will find several panels of particular interest. Our own Walter Olson spoke about the new age of litigation financing, for example, while Nick Rosenkranz addressed textualism and the Bill of Rights – a panel that also included the spirited remarks of Cato adjunct scholar Richard Epstein. See also Epstein’s discussion of intellectual property on another panel that first day.

Then too you won’t want to miss senior fellow Randy Barnett’s treatment of textualism and constitutional interpretation the next day, especially as he spars with two opponents on the left, or his Saturday debate against Judge J. Harvie Wilkinson III of the Fourth Circuit Court of Appeals, where the proposition before the two was “Resolved: Courts are Too Deferential to the Legislature.” And finally, our own Trevor Burrus was on hand for a book signing: The book he edited, A Conspiracy Against Obamacare: The Volokh Conspiracy and the Health Care Case, has just come out and is must reading for those who want to see how the issue of the day, and many days to come, was teed up, legally, by a dedicated band of libertarians before it reached the Supreme Court.

This Month at Cato Unbound: The Federal Reserve at 100

We have now had 100 years of central banking. So what do we have to show for it? Has the Federal Reserve been worth it? If not, what should we do? 

That’s the topic of this month’s Cato Unbound. Our panel will present a variety of viewpoints, starting with Cato Senior Fellow Gerald P. O’Driscoll, Jr., who argues that a central bank is unnecessary in a classical regime of commodity money and free banking. Central banks are only needed, he argues, when governments want to spend beyond their means. He recommends returning to fiscal discipline and then to commodity money, under which a central bank will be unnecessary.

Opinions do differ on these questions, of course, and we will also hear from George Mason University Professor Lawrence H. White, Bentley University Professor Scott Sumner and former Cleveland Federal Reserve President Jerry L. Jordan. Readers are invited to submit comments and to follow us on Twitter and Facebook for regular updates and discussion.

A New Libertarianism.org, a New Podcast, and 100 Excursions

Today’s kind of a big deal over at Libertarianism.org.

To start with, the Cato Institute’s resource on the theory and history of liberty unveiled a completely new look, one designed from the ground up to work great on mobile devices like smartphones and tablets. And we created a new way to browse all of Libertarianism.org’s content from within a single, intuitive interface.

We’ve also launched Libertarianism.org’s first podcast, “Free Thoughts.” Hosted by Trevor Burrus and me, it’s a bi-weekly discussion show about libertarianism and the ideas that influence it. The first episode is on politics and community and the relationship between them. In the coming weeks, we’ll have episodes on money and political speech, commodication, Robert Nozick’s Anarchy, State, and Utopia, and much more. You can subscribe in iTunes—or via RSS.

Finally, today we published the 100th Excursions essay from George H. Smith. Smith is an authority on libertarian intellectual history and author of the new book The System of Liberty: Themes in the History of Classical LiberalismEvery week for the last two years, Libertarianism.org has published a new essay from Smith. His 100th looks at Adam Smith, standing armies, and competition in education.

It’s an exciting day for Libertarianism.org. And we’ve got much more to come.

Protecting the Rights of Workers Against Forced Association

The Labor Management Relations Act (a.k.a. the Taft-Hartley Act) was passed in 1947 in order to curb the tide of unfair labor practices that had arisen since the National Labor Relations Act (NLRA) was passed in 1935. The NLRA established a legal regime that was friendly to unions and unfriendly to the rights of workers who dissented from attempts to unionize workplaces. Unions have many tools at their disposal to ease the path to unionization, but the government should not prefer the rights of those who wish to be unionized at the expense of those who do not.

One part of Taft-Hartley, Section 302, addresses the problem of corruption between unions and employers by prohibiting employers from giving “any money or thing of value” to a union seeking to represent its employees. Martin Mulhall is a 40-year employee for the Mardi Gras greyhound racetrack and casino in Hollywood, Florida, and he opposes the efforts of Local 355 to unionize Mardi Gras’s employees. Mr. Mulhall’s desire not to be unionized is no less valid or constitutionally protected than those who push for unionization, and thus he is a perfect example of an employee for whom the Taft-Hartley Act passed to protect.

Mr. Mulhall alleges that, in violation of Section 302, Local 355 and Mardi Gras exchanged “things of value” in order to smooth the path to unionization. In exchange for the union agreeing not to picket, boycott, or strike against Mardi Gras, as well as for financially supporting a ballot initiative that legalized slot machine gambling, Mardi Gras agreed to support Local 355’s efforts to organize its employees. Specifically, Mardi Gras gave the union access to employee records and to its facilities in order to engage in organizing efforts during non-working hours. Additionally, and most crucially, Mardi Gras agreed to waive its right to a secret-ballot election supervised by the National Labor Relations Board as well as its right to contest any unfair labor practices committed by the union during the process of organizing the workers.