Greg Byrne is the Athletics Director at the University of Alabama, while Nate Oats is the head coach of the University of Alabama’s basketball team. Two of the “student-athletes” on their squad were involved in the murder of Jamea Jonae Harris, a 23-year old woman and mother, and one of them (Brandon Miller) is not only still on the team; Bryne and Oats (both of whom are pictured below) allowed Miller to play in last night’s away-game against the University of South Carolina. This state of affairs is absolutely disgraceful. Also, why hasn’t Dr. Stuart R. Bell, the president of the University of Alabama, asked both men to resign their positions?
My home institution the University of Central Florida (UCF) has announced that John C. Hitt, our president from 1992 to 2018, has died at the age of 82. It was under President Hitt’s forward-looking leadership that UCF went from a medium-sized commuter school to the largest research university in the world.
Today (22 February 2023) is George Washington’s 292nd birthday! Two reasons I like to mark this occasion is Washington’s decision to resign his military commission after the rebels won the American Revolution as well as his fateful decision not to seek a third term when he was president. To commemorate the anniversary of Washington’s birth, I am posting the song “Right Hand Man” from the musical Hamilton.
Note: This is the third in a series of blog posts in honor of Richard Posner
My independent study of the works of Richard A. Posner began in December of 2000, when I visited a used bookstore called Brand Bookshop in Glendale, California for the very first time–the first of many future visits. It was there, among dozens of law books on the shelves of Brand Bookshop, that I found a pristine first edition of Posner’s Law and Literature: A Misunderstood Relation–the cover of which is pictured below and which is available here, by the way. (As an aside, I remember the month and year of this moment because I was visiting my mother and father during the holidays, right after the Supreme Court had effectively appointed George W. Bush as president, perhaps the worst and most illegitimate decision in SCOTUS history.)
As I mentioned in my previous Posner post, however, I had already formed an unfavorable impression of Posner during my law school days at Yale for purely ad hominem reasons–specifically, because of Posner’s close association with the so-called “Chicago school” and “law & economics” more generally. As a result, when I began my academic career at the Pontifical Catholic University in the summer of 1998, I purposely avoided Posner’s economic oeuvre. But a book about literature intrigued me. At the time, I did not know that Posner had majored in English Literature at Yale, but I had majored in Spanish Literature at UC Santa Barbara, and I was sufficiently open-minded to give Judge Posner another hearing!
Suffice it say that when I finally read Law and Literature: A Misunderstood Relation on my own, my appreciation of Posner’s literary wit and intellectual genius was a true but unexpected revelation. Among other things, Posner’s initial chapter on revenge literature showed me how economics could explain the tit-for-tat logic of such a powerful and dangerous human emotion like vengeance as well as illuminate the ancient history of informal norms regarding retribution. But the passage that made the deepest impact on my intellectual development was Posner’s extended discussion of Oliver Wendell Holmes’ eloquent dissent in the landmark case of Lochner v. New York. (See pp. 266-272 of Posner’s Law and Literature.)
As it happens, I had studied Lochner in law school, and to this day I still remember that this case is supposed to symbolize the dangers of “judicial activism”–an omnipresent danger that was alive and well in 1905, the year Lochner was decided, decades before SCOTUS abolished school prayer, expanded the legal rights of vagrants and criminals, legalized the murder of unborn children, appointed an illegitimate president, and unilaterally legalized gay marriage. Because Posner’s analysis of Lochner marks a turning my point in my intellectual development, I will discuss this great case, Holmes’ dissent in Lochner, and Posner’s brilliant analysis of Holmes’ dissent in my next Posner post.
IP history: On this day (21 Feb.) in 1842, the first U.S. patent for the sewing machine is granted. (Charles Fredrick Wiesenthal, a German-born engineer working in England, was awarded the first British patent in 1755 for a mechanical device to aid the art of sewing.)
Military history: On this day (21 Feb.) in 1808, Russian troops invade Sweden at Abborfors in eastern Finland, thus beginning the Finnish War. Sweden will lose the eastern half of the country (i.e. Finland) to Russia. (Sound familiar?)
Sports history: On this day (21 Feb.) in 1948, NASCAR is created at the Ebony Bar of the Streamline Hotel (pictured below) in Daytona Beach, Florida.
Happy Presidents Day Weekend! Thus far, I have reviewed the first five chapters of Thomas Bingham’s Rule of Law, and along the way I have identified some serious flaws in Judge Bingham’s book, such as the circularity of the equality principle (see here), the problem of hard cases (here), and the existence of vague or conflicting laws (here). Today, I will call Bingham out for a logical fallacy that he makes in Chapter 6 of his work, which is titled “The Exercise of Power.” To the point, Bingham begins this chapter by stating that public officials should exercise their powers reasonably and in good faith and “without exceeding the limits of such powers,” but this statement begs the question: Who decides? Specifically, who decides whether a public official has exceeded his powers? Who decides what is reasonable? For Bingham, the courts decide these questions. Citing the well-established principle of judicial review, Bingham tells us that it is “the courts [who] enforce compliance by public authorities …”
But how sound is this principle? In summary, the logic of judicial review in constitutional cases can be restated as a syllogism as follows:
Premise #1: A country’s “constitution” is its fundamental law.
Premise #2: One of the purposes of a constitution is to set limits on political power.
Premise #3: All government officials (including the judges themselves) must obey the constitution.
Conclusion: When a public official violates the constitution, the courts have the implicit power of judicial review, i.e. the courts can declare the official’s act unconstitutional.
Alas, although this logic appears sound on paper, judicial review has more bark than bite in the U.S. context. One problem arises when we imply that judges have the exclusive or supreme power to enforce the constitution. In reality, however, in a federal system of government like ours, consisting of three co-equal branches, all public officials play a vital role in constitutional interpretation. President Andrew Jackson, for example, famously vetoed a bill re-authorizing the charter of the national bank–a measure that the Supreme Court had already upheld in McCulloch v. Maryland–because Jackson thought the national bank was unconstitutional.
Another problem is that the U.S. Constitution contains many general provisions that are open to multiple interpretations. (Compare the problem of hard cases, which I discussed in a previous post.) Take the Second Amendment, for instance, which protects the right to bear arms. Can Congress require gun owners to buy liability insurance, or would such a mandate violate the Second Amendment? Or what about the First Amendment, which forbids the Congress from enacting any law abridging the freedom of speech. Why doesn’t this provision prohibit Congress from making perjury a crime? It is thus not always obvious when a public official is exceeding the limits of his power.
But the most serious problem with judicial review, especially the erroneous view that judges have the last word as to the meaning of the constitution, is that courts have very limited enforcement powers in practice in high-profile constitutional cases. When the person or entity who is allegedly violating the constitution is the president or prime minister or parliament, does a court really have the power to order the president’s arrest or the arrest of a majority of the members of parliament? No court possesses this power as a matter of fact. Judicial review’s bark is often bigger than its bite!
The best example of point #3 is the most famous Supreme Court case of all time: Brown v. Board of Education. In that case, the Supreme Court decided to nullify the policies of four local school districts by declaring segregation on the basis of race to be unconstitutional. And, yet, over three-quarters of a century later, most public schools are still racially segregated.
I am reblogging my pop quiz from last week because, based on the evidence in several recent reports (see here, here, and here), it looks like the object shot down by the U.S. Air Force on 10 February was a small metallic balloon, which can be purchased at Party City for under $7.00, that was launched by a club of high-altitude-balloon hobbyists that call themselves the “Northern Illinois Bottlecap Balloon Brigade”! Question: Should I update my priors in favor of answer choice #3 (research), or should I add a new category (hobby balloons) to my quiz? Either way, that still leaves two other unidentified flying objects.
As I see it, a good Bayesian should assign an equal probability to each of these outcomes and then begin updating these priors as new evidence becomes available, right?
Next week, I will review Chapters 6 and 7 of Rule of Law by Tom Bingham as well as write another blog post or two about the one of the greatest legal scholars and judges of all time, Richard A. Posner. In the meantime, I am going to take this Presidents Day weekend off to attend to some other matters.
prior probability 