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Bruce Nye (Cal Biz Lit) and Michael Pappas (at Law.com Corporate Counsel) count the ways: “Why do I have to tell everyone that my grilled chicken, which is made the same way as my grandmother used to make it, may cause cancer?” (The answer being California-specific Proposition 65.)

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Martin Wolf, a prominent British economics journalist, has an interesting blog post criticizing libertarianism. Wolf is an excellent writer, but I think this particular piece is not one of his best. Wolf’s criticisms are that libertarianism rules out certain policy options that should be left up to “politics” and that it is “hopeless” politically. The first argument is weak, and the second greatly overstated.

Here are Wolf’s two key points:

There exists a strand in classical liberal or, in contemporary US parlance, libertarian thought which believes the answer is to define the role of the state so narrowly and the rights of individuals so broadly that many political choices (the income tax or universal health care, for example) would be ruled out a priori. In other words, it seeks to abolish much of politics through constitutional restraints.

I view this as a hopeless strategy, both intellectually and politically.

It is hopeless intellectually, because the values people hold are many and divergent and some of these values do not merely allow, but demand, government protection of weak, vulnerable or unfortunate people. Moreover, such values are not “wrong”. The reality is that people hold many, often incompatible, core values. Libertarians argue that the only relevant wrong is coercion by the state. Others disagree and are entitled to do so.

It is hopeless politically, because democracy necessitates debate among widely divergent opinions. Trying to rule out a vast range of values from the political sphere by constitutional means will fail. Under enough pressure, the constitution itself will be changed, via amendment or reinterpretation.

Wolf’s first argument ignores the fact that modern liberal democracies already rule out a wide range of “political choices.” Indeed, they rule out the vast majority of the major political ideologies in the world. For example, nearly all current liberal democratic constitutions forbid fascism, communism, full-blown socialism, and theocracy — forbidding them in the sense that they cannot be adopted through “normal” legislation, but only by constitutional amendment. Some liberal democratic constitutions (e.g. — Germany’s) forbid the enactment of certain policies even with an amendment. The various ideologies ruled out by liberal democratic constitutions surely embody “values” that many people hold dear, and on which they are “entitled to disagree” with liberals. For example, theocracy embodies the widely held view that religious truth is important and that we should not allow people to imperil their souls by persisting in religious error.

The distance between status quo constitutional constraints in most of the Western world and those that most libertarians would prefer is actually much smaller than that between the former and many of the alternatives we have already ruled out of bounds. There may be good reasons to reject libertarianism and constitutional constraints on “economic” legislation. But the supposed general undesirability of ruling out policies that embody “values” on which people are entitled to disagree isn’t one of them.

Wolf’s political argument is also unpersuasive. It is not a given that “[t]rying to rule out a vast range of values from the political sphere by constitutional means will fail.” To the contrary, that is exactly what liberal democracies have successfully done already by entrenching freedom of speech, freedom of religion, gender and racial equality before the law, and so on. It is probably true that “[u]nder enough pressure, the constitution itself will be changed, via amendment or reinterpretation.” But the point of constitutional constraints on government power is not to make certain kinds of change impossible, but to make it hard. On this front too, liberal democratic constitutions have a long history of at least partial success. No serious libertarian thinker believes that constitutional constraints are a fool-proof protection for the rights they value. They are merely a better safeguard than the ordinary political process.

Perhaps Wolf’s broader point here is that libertarianism is unlikely to sweep the political field any time soon. That is surely true. The vast majority of public and elite opinion is not libertarian, and is not going to suddenly convert in the near future. On the other hand, much of the public does greatly distrust government and is willing to support substantial reductions in its size and scope. And libertarian ideas have also made progress among political and intellectual elites over the last several decades, moving from near-total marginalization to a considerable degree of respectability. It may never be possible to have a fully libertarian society (even if libertarians agreed among themselves what such a society would look like, which we don’t). But we can reasonably hope to make substantial progress in a libertarian direction. It is also politically unlikely that we can ever fully implement the principles of liberalism or conservatism. But that fact does not discredit these ideologies. The same point applies to libertarianism.

UPDATE: Wolf also discusses several specific policy issues and argues that libertarians are wrong about them. His arguments on these points are very conclusory and mostly ignore the vast literature libertarian scholars have produced on public goods, externalities, insurance problems, and other issues that he seems to assume only government can address. In this post, I’m not going to try to address these specific policies. Instead, I wanted to respond to Wolf’s two more general criticisms of libertarianism. For my summary of what I consider the most important general libertarian arguments against large and complex government, see here.

UPDATE #2: I just noticed that Wolf’s post, which I found only recently, was written about a month ago. Since the issues he raises are hardly time-sensitive, I don’t think this is a major problem.

John McWhorter has thoughts about this in an NPR interview. I generally like McWhorter’s work, and his comments on this in particular struck me as quite apt. Plus he and I agree on what an awful name “Ebonics” is. 

No doubt many readers have seen the press articles announcing George Soros’ gift of $100 million to Human Rights Watch.  Most interesting to me was that the gift is aimed, in part, at diversifying the organization, staff, and board away from its current US-centric arrangement.  As the AP puts it:

But the money also is meant to make its donor base as international as its outlook. Plans call for Human Rights Watch to draw at least half its income and most of its board members from outside the U.S. within five years. Now, about 70 percent of the money and 80 percent of the board members are U.S.-based.

Soros considers that a liability — one he blamed on a frequent target of his, former President George W. Bush.

“They’re basically an American organization advocating human rights all over the world. But the United States has lost the moral high ground, during the Bush administration, and, therefore, it runs into opposition because there’s resentment of American interference,” Soros said in an interview in his sleek office in a midtown Manhattan high-rise. ” ... It’s a drawback, to be American in this context.”

HRW agrees, although it already believes it is seen as independent of the US government.

“But it is helpful for our organization to personify the global values we promote,” Executive Director Kenneth Roth said.

I wonder if it is quite so easy to personify global values in that way, however.  Multinational corporations, for example, often talk about how global they are, in outlook, in values, in all those ways.  I query whether it actually works that way in MNEs; likewise, my experience in international NGOs is that they all preach globalization and universality, but in practice it does not actually happen that way.

Jonathan links below to Adam Liptak’s front-page New York Times article on the ideology of law clerks, and Jason Mazzone’s critique of it. Echoing the point at the end of Mazzone’s critique, I think the ideology of law clerks roughly matches that of the Justices because the Justices are trying to solve the principal-agent problem. As Wikipedia explains:
In political science and economics, the problem of motivating a party to act on behalf of another is known as ‘the principal–agent problem’. The principal–agent problem arises when a principal compensates an agent for performing certain acts that are useful to the principal and costly to the agent, and where there are elements of the performance that are costly to observe. This is the case to some extent for all contracts that are written in a world of information asymmetry, uncertainty and risk. Here, principals do not know enough about whether (or to what extent) a contract has been satisfied. The solution to this information problem — closely related to the moral hazard problem — is to ensure the provision of appropriate incentives so agents act in the way principals wish.

Supreme Court Justices solve the principal/agent problem by tending to hire law clerks who generally agree with their bosses’ views of the law. That agreement gives the Justices more confidence that their law clerks will be faithful agents without the Justices having to engage in costly monitoring of law clerk performance. 

I think this happens roughly equally among the liberal and conservative Justices. The data Liptak presents misses this a bit by suggesting that the trend is more pronounced among the conservative Justices. Justice Thomas has never hired a clerk who worked for a Democratically-nominated circuit judge, Liptak notes. In contrast, Justice Breyer hires clerks who worked for GOP-nominated circuit judges on a regular basis. The numbers are accurate, but in my view, they don’t reflect a greater willingness among liberal Justices to hire conservative clerks than conservative Justices have to hire liberal clerks. Rather, I think the numbers reflect the fact that the pool of today’s circuit court law clerks is considerably to the left of the pool of today’s circuit court judges. 

Consider the dynamic. Because the pool of potential circuit clerks is more liberal than the pool of existing circuit court judges, ideological mixes between clerk and judges tend to be one-way. Specifically, it is common for many GOP-nominated circuit court judges to hire liberal clerks. After all, most of the applicants out there are liberal. Even if you slightly prefer conservative candidates, you’re likely to end up with lots of liberal clerks given the pool. In contrast, it is rare for a Democratically-nominated circuit court judge to hire a conservative clerk. (Not unheard of, but rare.) If you’re a Democratically-appointed circuit judge, and you slightly prefer liberal clerk candidates, you’ll find you have tons of qualified liberal applicants to choose from. 

This dynamic then leads to the chart we see in the Liptak article with conservative Justices hiring almost exclusively from GOP-nominated circuit court chambers while liberal Justices have a more mixed record. If you’re a conservative Justice, you’ll find ideological matches only in the ranks of alumni of GOP-appointed circuit court judges. On the other hand, if you’re a liberal Justice, you’ll find ideological matches among the alumni of both Democratically-appointed circuit court judges and some GOP-appointed circuit court judges. To put some names on it, a liberal Justice can hire lots of Boudin clerks, and an occasional Kozinski clerk or Wilkinson clerk, without hiring a clerk who is actually conservative.

Finally, I should point out that all of this discussion is of course very much oversimplified. Terms like “liberal” and “conservative” are blunt and often misleading labels. Each Justice, and each clerk, has a wide range of views that often are hard to classify. Still, I think the oversimplification at least leads to some helpful generalizations, even if it’s important not to look at the problem with too simple a lens.

Lawfare is not just the name of a great new national security law blog, it’s also the subject of a conference this Friday at the Case Western Reserve University School of Law.  Details, including information on viewing the webcast, here.

Adam Liptak reports on the apparent polarization of Supreme Court clerks.  According to Liptak, Supreme Court justices increasingly hire only those who clerked for judges who share their ideological disposition.  Justices appointed by Democratic presidents hire those who clerked for lower court judges appointed by Democratic presidents and justices appointed by Republican presidents hire those who clerked for lower court judge appointed by Republican presidents.

Jason Mazzone comments on Liptak’s story at Balkinzation.  According to Mazzone, Liptak’s failure to account for the changing composition of lower courts causes him to exaggerate the trend.

Liptak overlooks a key change between 1975–1980 and 2005–2010 in the composition of the circuit courts. In 1980, there were 50 circuit court judges who had been nominated by a Republican President; 86 of the circuit court judges had been nominated by a Democratic President. (There were also 4 circuit judgeship vacancies in 1980.) In other words, in 1980, 37% of the circuit court judges were nominated by a Republican President and 63% were nominated by a Democratic President.

By contrast, today there are 91 sitting circuit court judges who were nominated by a Republican President and 68 circuit judges who were nominated by a Democratic President. (There are also 20 circuit judgeship vacancies). In other words, of the current federal circuit judges, 57% were appointed by a Republican President and 43% were appointed by a Democratic President.

Some of what Liptak identifies as increased hiring of Supreme Court law clerks from Republican circuit judges simply reflects the increased number of law clerks from Republican circuit judges because there are today more Republican circuit court judges.

Mazzone also questions whether the Justices’ clerkship hiring patterns really matter all that much.  Mazzone finds Liptak’s suggestion that the alleged polarization in clerkship hiring increases the ideological polarization of the Court to be unpersuasive.  He ends his response with this intriguing thought:

If, like Liptak, we think the Justice should be in the driver’s seat, then surely it is better for a Justice to hire law clerks who will be faithful lieutenants and who will perfectly execute the Justices’s wishes. Liptak’s argument for diversity presents the risk of having a law clerk who tries to manipulate outcomes: providing selective information to the Justice, hiding key facts, burying cert. petitions, inserting language in an opinion to lay the groundwork for overruling a case with which the clerk disagrees, or colluding with clerks in other chambers who share the clerk’s own political disposition.

Diversity in chambers presents a greater risk of law clerks aggrandizing power at the Court than comes from clerks whose views are close to those of the Justice they serve.

Concurring Opinions is hosting a lawblog symposium on Jonathan Zittrain’s book The Future of the Internet — and How To Stop It. I’m one of the many contributors.

Following the August 23 preliminary injunction issued by federal District Court Judge Royce Lamberth to block NIH funding of embryonic stem cell research, the Justice Department filed a motion requesting that the injunction be stayed pending an appeal to the D.C. Circuit. In a very short, 2-page order this afternoon, Judge Lamberth denied the stay motion. 

Lamberth’s decision is not surprising, given that the issues at the root of both a motion for a preliminary injunction and a motion for a stay order are essentially the same: the court must weigh (1) the relative harm that each side would suffer if they ultimately prevail on the underlying merits of the dispute but are precluded from acting in the way desired while the underlying issue wends its way through the legal system and (2) the “irreparable” nature of such harm. I believe Lamberth’s ruling today is legally incorrect, for the same reasons articulated in my August 25 post analyzing the preliminary injunction. I won’t rehash those arguments in their entirety, but a couple of points bear noting in light of today’s order.

For practical purposes, the most important point in today’s order — and the one that should be the lead in tomorrow’s newspapers — is Lamberth’s surprising statement that his injunction does not prohibit the NIH from continuing to fund embryonic stem cell research that was permitted by the Bush Administration under its restrictive rules. This is a silver lining for some stem cell researchers, because it means that research projects on the 21 Bush-approved stem cell lines that has been ongoing for as long as eight years need not be shut down. But it completely undermines the reasoning of Lamberth’s decision on the merits of the case, and helps to illustrate why it should be overturned on appeal. 

To briefly review, Lamberth ruled that the Congressionally approved, recurring Dickey-Wicker Amendment, which prohibits federal funding of “research in which…embryos are destroyed…” extends to the funding of research on embryonic stem cell lines, which are created by removing cells from 5-day old human embryos (thereby destroying the embryos) but thereafter replicate themselves in culture without any further involvement of embryos. Lamberth’s reasoning is that “research” is a very broad concept, such that a grant applicant seeking to work with embryonic stem cells is engaged in the same “research” as the non-applicant who, at a prior date, created the original stem cell line. 

The Bush Administration funded embryonic stem cell research only when the cell lines used had been created prior to 2001, whereas the Obama Administration last year expanded funding to embryonic stem cell research that uses cell lines that the government has verified were originally created from embryos left over from in vitro fertilization efforts, regardless of when the cell lines were produced. There is nothing in Lamberth’s reasoning that would distinguish between cell lines created before or after 2001. If researchers who work Obama-approved cell lines are engaged in the same “research” as the scientists who created the cell lines, researchers who work on the 21 Bush-approved cell lines are engaged in the same “research” as the scientists who created those lines. 

Judge Lamberth apparently recognizes this logical inconsistency, because he attempts two subtle rhetorical devices in today’s order to try to blunt this criticism. First, he notes that the “Plaintiffs agree that this Court’s order does not even address the Bush administration’s guidelines.” But if Bush allowed funding of A, Obama allowed funding of A and B, and Judge Lamberth finds that the law prohibits funding of A and B, it is hard to understand how the NIH may continue to legally fund A, just because the plaintiffs’ complaint was focused on the Obama rules rather than the Bush rules. Second, Lamberth points out that the Bush rules allowed research only on “existing stem cell lines, foreclosing additional destruction of embryos.” This distinction might matter if Lamberth’s underlying reasoning were that the Dickey-Wicker Amendment prohibits funding of research projects that might create an incentive to destroy embryos in the future, but this is not at all his reasoning. His entire argument is retrospective, not prospective: that research on a stem cell line is the same research project as the prior creation of the line. (By the way, Lamberth’s attempted distinction is factually questionable as well, because the Obama rules only allow funding of research on lines derived from embryos that would otherwise be destroyed anyway; thus, they do not actually create an incentive to increase the number of embryos destroyed). 

Lamberth’s order today also attempts to narrow the scope of his August 23 decision by saying that the injunction does not prohibit NIH from maintaining its Human Embryonic Stem Cell Registry and from funding induced pluripotent stem cell (iPSC) research. (iPSCs are adult cells reprogrammed to behave like embryonic stem cells). Again, this is hard to square with the breadth of his reasoning. Embryonic stem cell lines are necessary for the maintenance of a registry, and they are necessary for iPSC research, because the iPSC cells must be compared to embryonic stem cells to determine if the former are behaving like the latter (as is the goal). Lamberth’s reasoning is that it is illegal for NIH to fund any research that uses embryonic stem cells. It logically follows from this premise that funding the registry and iPSC research are illegal. 

One other interesting element of today’s order is a point on which Lamberth is completely silent. In its brief requesting the stay, the Justice Department compared the potential harm to the plaintiffs if the stay were granted pending appeal to the potential harm that would result if the stay were not granted. On the former side of the equation, the Justice Department presented two new facts, of which I was not previously aware: that one of the two plaintiffs claiming harm from having to face increased competition for grants from allegedly illegal embryonic stem cell research grant proposals has recently been awarded an NIH grant, and that the other plaintiff who claimed the harm of increased competition has never applied for an NIH grant! These facts, provided in an affidavit by NIH head Francis Collins, suggest that the likelihood that the plaintiffs would suffer any real harm if the stay were lifted until the merits of the case are resolved is vanishly slight. Yet Lamberth completely ignores them. 

The only defense of today’s decision offered by the order is that “a stay would flout the will of Congress, as this Court understands what Congress has enacted in the Dickey-Wicker Amendment.” The problem with resting the denial of the stay solely upon his interpretation of Dickey-Wicker is that, if the legal question concerning whether a stay were appropriate were supposed to be exactly the same as the question concerning the proper interpretation of Dickey-Wicker, we wouldn’t need a separate legal process for considering the stay. 

Over at the Lawfare Blog, Jack Goldsmith offers an interesting take on the recent announcement that David Addington has joined the Heritage Foundation as its new Vice President of Domestic and Economic Policy Studies.

The Washington Post — unlike some other newspapers we might think of — doesn’t mind letting its editorial stance catch up with the facts on the ground as they appear to NHTSA staff. We’ve been on the story for quite a while.

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The other day the Obama administration came out with the first official U.S. response to the United Nations’ “periodic review” critique of human rights practices within the United States. To the surprise of many — though not of those who’ve been following this area carefully — it presented as human rights imperatives worthy of international attention a wide range of initiatives that would earlier have been seen as domestic policy matters, from ObamaCare (whose passage — including a penalty on individuals for failing to buy health insurance — it depicted as a human rights advance) to labor law (where it suggested that Congress might be putting the U.S. human rights record at risk if it declines to expand the organizing rights of labor unions).

One of the major themes of my forthcoming book Schools for Misrule is the role of thinkers in the law schools in preparing the way for new and transformed (and gravely mistaken) conceptions of international human rights. Today on the Cato Institute’s daily podcast series, Caleb Brown interviews me about the ongoing redefinition of international human rights and how we got to this point. The interview audio is available here.

My Cato Institute colleague Roger Pilon, who directs the Institute’s Center for Constitutional Studies and served under Reagan as policy director for the State Department’s office on human rights, has been active in recent days in advancing a critique of the Obama administration’s approach in a Philadelphia Inquirer op-ed as well as at Cato at Liberty.

And coincidentally: today’s NYT reports that George Soros is giving $100 million to Human Rights Watch, a group in the forefront of advancing novel human rights claims.

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The NYT reports on studies on effective study habits.  Among other things, the it discusses studies showing that some simple, and potentially counter-intuitive, techniques can enhance recall and retention.  In particular, it suggests that varying study environments and mixing up content in study sessions enhance the effectiveness of studying.  So don’t always study in the same cubicle or space and don’t focus on a single subject on a single day.  The story also notes that research supports the value of some conventional recommendations as well, such as the value of taking breaks and self-testing.