Much legal commentary at Slate follows a pat formula: judicial activism is a genuine menace, but not from left or liberal jurists. It’s those awful judges on the conservative and libertarian side who engage in the real activism when they strike down laws and government initiatives, or as in the case of ObamaCare, come close to striking them down. To observe the formula at its most mechanical, check out Emily Bazelon’s Slate article last Wednesday portraying a judge’s striking down of Mayor Bloomberg’s ban on big soda sizes as a venture in “conservative judicial activism.”

Never mind that none of the readily available biographical information about jurist Milton A. Tingling seems to justify describing him, as Bazelon does, as a “conservative judge.”  (Elected in Manhattan on the Democratic line, Judge Tingling appears to have fit his judicial career comfortably into the framework of Charles-Rangel-era Harlem politics, as David Bernstein mentions at Volokh Conspiracy. In a couple of earlier notable cases, Judge Tingling did rule against police and public-order interests, but we don’t ordinarily regard that sort of civil-libertarian streak as distinctively “conservative.”) 

Bazelon assails Judge Tingling for supposedly substituting his own judgment for that of Bloomberg’s Department of Public Health on the merits of the drinks ban. But everyone agrees the question properly before the court was not whether the judge agreed with the ban. It was instead whether the ban could pass muster under the relevant New York precedent, a 1987 case called Boreali v. Axelrod in which New York’s highest court (to quote the case summary) ruled that the state Public Health Council “overstepped the boundaries of its lawfully delegated authority when it promulgated a comprehensive code to govern tobacco smoking in areas that are open to the public.” Boreali is a distinctive New York case, and creates a test for impermissible delegation that differs from what courts do when applying federal law.

Prof. Aaron Saiger, a specialist in local government law at Fordham Law School in Manhattan, had this to say the other day at Concurring Opinions about the drinks ruling: 

… Judge Tingling is right that New York State’s nondelegation doctrine – the doctrine that administrative law professors who teach only federal cases tell their students is a dead letter – prohibits the rule. The foundational case, Boreali v Axelrod, is nearly on all fours with this case. Health departments, pursuant only to sweeping language giving them authority over public health, cannot in New York State limit trade in legal markets over which the legislature has given them no explicit authority. If the City is to win its promised appeal, it is going to need to argue that Boreali should be overruled or limited.

The problem with that is that Boreali is right. Nondelegation is an important constitutional principle and should not be sidelined out of existence. … I think it’s not just reasonable, but better politics, better civics, and better constitutional law to require those shoves [i.e., paternalistic “nudges”] to come from a legislative, rather than an executive and bureaucratic, process.

Saiger’s commentary is all the more pertinent because he’s anything but a fan of the decision’s craftsmanship. Unlike Judge Tingling, he doesn’t think the ban was arbitrary or capricious; he doesn’t believe the city’s charter should be read to limit the Health Department’s decree powers to those responding to imminent or emergency health threats; and he’s not averse in principle, he says, to what the Mayor was trying to do. 

So what does Bazelon think about Boreali v. Axelrod? Does she think it should be overruled or can somehow be distinguished from the beverages case? It’s hard to tell, because her article never mentions Boreali at all, though Judge Tingling had laid it out at great length as the precedent on which he was basing his decision. 

Judges shouldn’t – and Judge Tingling didn’t – breeze right by the relevant case law in the course of reaching a foreordained conclusion. If only all legal commentators were as careful.

The Fund for American Studies has long done excellent work educating students on the principles of individual liberty and free-market public policy.  Many Cato scholars and interns have been involved with its programming over the years, including Roger Pilon and Randy Barnett in the legal field.  I now have the privilege of serving on the Board of Visitors of TFAS’s Legal Studies Institute (along with Randy and others who are familiar to those who follow Cato’s work), and heartily recommend its summer program for law students looking for a DC experience that includes an internship, class credit, mentoring, high-level briefings and panels, and career development.  The application deadline has now been extended to April 3.  Here are the details:

LEGAL STUDIES INSTITUTE                                     

May 23 – August 2, 2013                                                                                             

Washington, D.C.                                                                             

PROGRAM COMPONENTS

• Legal Internship: Participants will be placed in a 9-week summer legal internship where they will work full-time and gain substantive experience in the legal profession. Internship sites include law firms, courts, public interest organizations and the legal departments of trade associations, corporations and government agencies.

• Briefings and Activities: Participants will attend private briefings at institutions of the judicial, legislative and executive branches and will meet with prominent judges, lawyers and judicial scholars. Previous guest speakers have included; Supreme Court Justice Antonin Scalia, Former Attorney General Michael Mukasey, U.S. Court of Appeals, Ninth Circuit Chief Judge Alex Kozinski and D.C. Federal Court of Appeals Judge Douglas Ginsburg among others.

• Career Development Activities: Workshops will be held to help prepare participants for success in their law careers, and planned networking events will facilitate professional interaction. 

• Attorney Mentor Program: Each participant will be matched with an experienced lawyer who will serve as a professional mentor during and after the program. 

• Constitutional Law Course for Credit: You will be enrolled in a constitutional law course titled “Originalism and the Federalist Papers.” Classes will be held at Georgetown University Law Center. Students will receive credit from Ohio Northern University Pettit School of Law, or for an additional fee from Georgetown University Law Center. The course will be taught by Federalist Society lecturers, Professor John Baker, visiting fellow at Oriel College, University of Oxford and Visiting Professor at Georgetown University. Professor Randy Barnett, the Camack Waterhouse Professor of Legal Theory at Georgetown University Law Center and Professor Roger Pilon of the Cato Institute will also lecture. 

• Housing: Students will live in fully-furnished apartments in downtown Washington, DC and are matched with other Institute participants. The apartments provide easy access to the DC metro transportation system. 

• Scholarships: 75% of students receive scholarship awards based on financial need and merit.

APPLICATION INSTRUCTIONS

Applications will be accepted until the extended deadline of April 3, but applicants are encouraged to apply as early as possible.  Visit www.DCinternships.org/LSI for more details and to begin an application. Questions may be directed to Jennifer Fantin, LSI recruitment and admissions assistant at admissions [at] tfas [dot] org  or 202.986.0384.

Today the Washington Post published a front page story about changing intepretations of the Second Amendment. The piece begins with a lecture by professor Don Kates.

In 1977 at a Denver hotel, Don Kates paced a conference room lecturing a small group of young scholars about the Second Amendment and tossing out ideas for law review articles. Back then, it was a pretty weird activity in pursuit of a wacky notion: that the Constitution confers an individual right to possess a firearm.

“This idea for a very long time was just laughed at,” said Nelson Lund, the Patrick Henry professor of constitutional law and the Second Amendment at George Mason University, a chair endowed by the National Rifle Association. “A lot of people thought it was preposterous and just propaganda from gun nuts.”

More than 35 years later, no one is laughing. In 2008, the Supreme Court endorsed for the first time an individual’s right to own a gun in the case of District of Columbia v. Heller. The 5 to 4 decision rendered ineffective some of the District’s strict gun-control laws. And Justice Antonin Scalia’s majority opinion echoed the work of Kates and his ideological comrades, who had pressed the argument that the Second Amendment articulates an individual right to keep and bear arms.

Kates–a liberal, civil rights attorney–published a seminal 1983 Michigan Law Review article arguing for an individual right interpretation of the Second Amendment, the same intepretation the Supreme Court endorsed 25 years later in District of Columbia v. Heller. Kates saw the crucial connection between civil rights and the natural right to self-defense–a connection most of his peers continue to miss.

Over at Libertarianism.org, you can watch one of Kates’s Constitutional jurisprudence changing lectures. Just two weeks back, we posted a talk he gave in 1989 on the history of gun ownership in America and the historical implications of the right to self-defense.