Ilya Somin

The strengths and weaknesses of federalism have been debated for centuries. But one major possible advantage of building decentralization and limited government into a constitution has been largely ignored in the debate so far: its potential for reducing the costs of widespread political ignorance. The argument of this paper is simple, but has potentially important implications: Constitutional federalism enables citizens to “vote with their feet,” and foot voters have much stronger incentives to make well-informed decisions than more conventional ballot box voters. The informational advantage of foot voting over ballot box voting suggests that decentralized federalism can increase citizen welfare and democratic accountability relative to policymaking in a centralized unitary state.

Ballot box voters have strong incentives to be “rationally ignorant” about the candidates and policies they vote on because the chance that any one vote will have a decisive impact on an electoral outcome is vanishingly small. For the same reason, they also have little or no incentive to logically evaluate the information they do know. By contrast, “foot voters” choosing a jurisdiction in which to reside have much stronger incentives to acquire information and use it rationally; the decisions they make are individually decisive.

Political ignorance is far from the only factor that needs to be considered in determining the degree of centralization in political systems. But it deserves greater attention than it has received so far.

Nelson Lund

This short comment responds to Michael Stokes Paulsen’s “The Uselessness of Constitutional Law”, http://libertylawsite.org/liberty-forum/the-uselessness-of-constitutional-law/, Paulsen makes the provocative suggestion that Constitutional Law be removed from the required curriculum at every law school in the country, and offered only as a Great Books/Great Cases elective. His goal is to foster a general liberal education that does not contribute to the corrupt, result-oriented culture of legal reasoning fostered by the Supreme Court and the legal professoriate.

This response to Paulsen suggests that if his entirely plausible accusations are valid, his proposed correction is simultaneously too bold and too timid. Too bold because it sacrifices an opportunity to help students become better lawyers. Too timid because it does not propose the kind of genuinely liberal education that would equip students to undertake a serious rethinking and reform of the degenerate culture that he condemns.

Michael Krauss

This toolkit contains the elements needed to understand the problem of medical malpractice in America today, and whether alternative dispute resolution (i.e., arbitration) clauses might be viable among other tort reform options.  The toolkit introduces medical liability as an intrinsic component of tort law, which itself must be understood as a part of private ordering if efforts at reform are to prove productive.  After providing an overview of the nature of tort, the nature of medical liability, and the nature of the alleged “crisis,” the toolkit indicates how reform has been attempted at the state level.  Particular attention is paid to efforts to encourage enhanced private ordering through alternative dispute resolution (“ADR”), both before and after alleged malpractice has occurred.  The toolkit identifies characteristics that make enforcement of such clauses more likely and points to a possible federal role in standardizing and publicizing viable arbitration clause drafting.  The toolkit also includes an up-to-date list of medical liability reforms in the fifty states, the only such list to exist in the country to the knowledge of the author.  Finally, the toolkit contains samples of current ADR efforts, and indicates which efforts are likely to be acceptable to the courts.

Neomi Rao

The concept of human dignity provides a useful reference point for evaluating American exceptionalism in the context of welfare rights. Since World War II, human dignity has emerged as the preeminent value in many modern constitutions and various human rights documents. Particularly in countries that have extensive welfare states, dignity is often about being part of the community, being protected and provided for by the government.  In America, however, political and legal discourse link dignity with individual rights and freedom from interference by the State. In this short Essay I explain how different concepts of dignity reflect fundamental disagreements about welfare rights and highlight aspects of American exceptionalism. The traditional American conception of human dignity may resist welfare rights, as can be seen in the current debate about whether and how government should expand healthcare coverage.

Steven Eagle

The U.S. Supreme Court’s “parcel as a whole” doctrine evaluates regulatory takings claims in the context of the landowner’s entire holding. The doctrine is predicated upon a largely arbitrary bifurcation, whereby the jurisprudence of regulatory takings is rooted in substantive due process, although the jurisprudence of physical takings is rooted in property law. Given its lack of a foundation in property law, “parcel as a whole” is both complex and uncabined.

The open-ended nature of “parcel as a whole” is reflected in current attempts to extend it under an asserted “unity of ownership” theory. Under this formulation, separate deeded parcels may be treated as one parcel for takings purposes, even if there is no common or overlapping ownership or common commercial enterprise as traditionally defined by property, partnership, or corporate law.

This Article asserts that the proper foundation for “parcel as a whole” is the common law doctrine of “appropriation to use.” It subsequently analyzes the “unity of ownership theory,” as it relates to coordinated development by separate owners of contiguous parcels. Under the Georgist “unity of ownership” view, value is created by society, which justifies government’s arrogation of the benefits of neighborly cooperation.

The Article concludes that “appropriation to use” clarifies analysis of the relevant parcel, and that “unity of ownership” undermines rules for determination of ownership established in real property, partnership, and business law. It thus is inimical to property rights, and, more broadly, hinders individual flourishing by depriving people of the fruits of social cooperation.

Ross Davies

Good eating is the norm at the fictional dining table of Rex Stout’s great and overweight detective Nero Wolfe. It has been that way since Stout’s first Wolfe murder mystery, Fer-de-Lance, was published in 1934. From early on, Stout and his publishers were aware of the appeal of the fine-foods feature of the Wolfe stories — an awareness reflected most obviously in the commercial publication of two popular cookbooks, as well as in the much more limited and obscure publication of another cookbook of a sort. This article will (1) briefly examine the two commercial cookbooks; (2) take a slightly closer look at the other cookbook — really an odd but appealing, and certainly unconventional, recipe box dressed up to look like a book; and (3) present the entire contents of that other cookbook/recipe box in a more conventional bookish form.

Francis Buckley

The American presidential system, with its separation of powers, plausibly imposes enormous costs on the economy without compensating gains, as seen in the current gridlock over the debt crisis. Modern parliamentary systems of government, such as those in Britain and Canada, seem to handle such problems more efficiently. Regretfully, however, the principle of separationism has been extended in Supreme Court decisions and in the Senate filibuster, in part because of the mistaken idea that this is what the Founders intended. A close examination of the preferences of the delegates to the Philadelphia Convention of 1787 tells a very different story. Had they voted on our present regime of presidential elections, they almost certainly would have rejected it. This conclusion is buttressed by an empirical analysis of delegate voting patterns.

Ross Davies

Nobody could have known it at the time, but when Rex Stout’s novella Justice Ends at Home was published in 1915, it foreshadowed not only the rise of two enduringly popular fictional heroes (Nero Wolfe and Archie Goodwin), but also the fall of one enduringly objectionable actual villain (Judge Martin T. Manton of the United States Court of Appeals for the Second Circuit). Leading scholars of the work of Rex Stout agree that the two main heroic characters in Justice Ends at Home — the flabby, phlegmatic, middle-aged Simon Leg and his sharp, energetic, youthful assistant Dan Culp — prefigured the fat Nero Wolfe and svelte Archie Goodwin who made their first appearance in Stout’s 1934 novel, Fer-de-Lance. As Stout biographer John McAleer puts it, “eighteen years before Fer-de-Lance was written, Wolfe and Archie already lived nebulously in the mind of Rex Stout.” Unlike Simon Leg and Dan Culp, Judge Fraser Manton — the main villainous character in Justice Ends at Home — has passed largely unnoticed by scholars of Stout and of the law. But the fictional Judge Manton is in fact a prefiguration of the infamous real-life Judge Martin T. Manton of the U.S. Court of Appeals for the Second Circuit. The similarities go beyond the names. Indeed, the two Mantons have enough in common to support an inference that Stout based his fictional Judge Fraser Manton on the real Martin Manton, although the real Manton would not become a judge until 1916 — the year after Justice Ends at Home was published. In other words, Stout’s selection of a corrupt Judge Manton for the lead bad-guy role in Justice Ends at Home was intriguingly prescient.

Neomi Rao

Novel legal questions raised by the war on terror and the evolving technology of warfare have highlighted the importance of executive branch legal interpretation, in particular how agencies address difficult questions about the scope and application of international law, often without review by Congress or the courts. This Article presents a public choice analysis of how the executive branch in the United States determines questions of compliance with international law. In contrast to theories that treat the state as a unitary entity, the public choice approach examines the different interests and incentives of the executive branch agencies that advise the President. These agencies frequently disagree about the content and application of international law and the executive branch often fails to coordinate these interests consistently. The unpredictability of the process encourages agencies to compete for control over international legal policy. Analyzing domestic inputs as well as coordinating institutions, the public choice approach considers how the “they” of the executive branch seeks to function as an “it.”

This leads to some distinct conclusions and predictions about international law compliance. First, it demonstrates some of the limitations of unitary state models, but also how public choice can be complementary to rational choice theories. Second, it predicts that competition to control central decision making will encourage agencies to use the indeterminacy of international law strategically. Agency officials benefit by keeping open the widest range of policy options consistent with international law. Finally, if government officials in other countries face similar incentives, this may provide an explanation based on sub-state actors for why international law does not exhibit the clarity and compliance often considered an aspiration for international law.

Adam Mossoff

The labor theory of value is fundamental to John Locke’s justification for property rights, but philosopher Edwin Hettinger argued in an oft-cited article that it fails to justify intellectual property rights. In making this critique, though, Hettinger redefined Locke’s theory into a theory about proportional physical labor creating economic value, just as Robert Nozick, G.A. Cohen and other philosophers have done. In response, this article describes Locke’s labor theory of value and how Locke himself applied it to intellectual property rights. It does so by analyzing the actual text of the Second Treatise, including many oft-neglected sections, and by integrating Locke’s property theory within the context of his natural law ethical theory, as presented in An Essay Concerning Human Understanding and in other works. In its proper context, Locke’s concept of labor refers to production, which for individuals is both an intellectual and physical activity. His concept of value refers to what serves the flourishing life of a rational being, which is a conception of the good that is more robust than merely physical status or economic wealth. Locke’s own text and philosophical arguments answer the absurdities imposed on him by Hettinger, Nozick, Cohen and others. Even more important, understanding his labor theory of value explains why Locke approves of inventions in presenting his labor-based property theory and why he explicitly argues that authors have property rights (copyrights) in their writings, which are arguments that are seemingly lost on his modern critics.