Liberty Law Talk

This Liberty Law Talk is with Ted Frank on reforming class action litigation and, in particular, the settlements plaintiffs receive under the current system. Frank, the founder of the Center for Class Action Fairness, argues that class-action suits contribute little to plaintiffs and substantially benefit only their lawyers. Monitoring and agency problems reign because most plaintiffs lack the incentives to ensure that the class’s lawyers are actually representing their interests and not the lawyer’s monetary desires. We also discuss the turn to arbitration by companies as an exit from class actions and Frank’s work that contests egregious attorney fee awards in class settlements. To date, the CCAF has had over a quarter of a billion dollars in attorneys’ fees reduced in class action awards.

So we were told with the passage of the Dodd-Frank Act that too big to fail was now behind us. Except it isn’t. In fact, the conditions supporting bank bailouts have only gotten worse with the nation’s largest banks actually increasing in size and scope since 2008. TBTF, however, goes back farther than you might think. This podcast with Vern McKinley on his book, Financing Failure, discusses the regulatory history of bank bailouts rather than winding down insolvent institutions. Contrary to the Hank Paulson and Ben Bernanke narrative of the 2008 crisis, although the scope of the problem was new, the subject matter of the problems faced by regulators was anything but unique. McKinley provides this account in interesting detail and considers our future under Dodd-Frank.

This next Liberty Law Talk is with John McGinnis, the George C. Dix Professor of Constitutional Law at Northwestern University, on his book Accelerating Democracy: Transforming Governance through Technology. McGinnis aims for an updated government that will use technology enabling it to fit with the progression of change in the twenty-first century. This involves improving the government’s capability to better utilize accumulated information to make sounder public policy. Part of this, McGinnis argues, is in using prediction markets and ensuring that information flows more transparently to citizens. Also, government must not stand in the way of new developments like Artificial Intelligence. In the case of prediction markets, McGinnis asserts that government should actually support such technologies to ensure increased accountability in government.

The next Liberty Law Talk is with Paul Horwitz on his new book, First Amendment Institutions. Horwitz challenges the dominant legal perspective on free speech in American law, which focuses on speaker and state. Instead of this acontextual approach, Horwitz poses that speech is impossible without the institutions that both form it and give it the opportunity to be heard. Institutions are the “scaffolding” of the individual’s right to free speech and should be accorded greater autonomy from the state in their self-government. Horwitz would include many state institutions in this category. Thus, the law, in regulating or permitting speech, must be guided by the shape and contour of these institutions and their meaning to civil society. When this is done the legal results will seem surprising but more in tune with how citizens actually live as neighbors, students, members of religious bodies, volunteers, etc.

This next Liberty Law Talk is with John Mueller, author of Redeeming Economics. Modern economic thought focuses on production, exchange, and consumption. Much of Mueller’s focus, however, is on final distribution, or the notion that a great deal of our economic activity is really about providing benefits or gifts to those we love. Mueller returns to Aristotle to articulate why this missing element is so important for understanding economics. In his Politics, Aristotle described the economy by using a household model oikos, the root of our word economics, where agents distribute goods to increase the flourishing of family members and friends. Augustine of Hippo, Thomas Aquinas, and the Scholastic school, as noted by Joseph Schumpeter in his History of Economic Analysis, refined and developed this notion of final distribution as a prime component of economic analysis. Our conversation turns to this missing element and seeks to understand what it adds to economic thought and what has been lost by its omission.

Who could be more American than former president Theodore Roosevelt? You might be surprised if you listen to the next Liberty Law Talk with Jean Yarbrough on her newest book, Theodore Roosevelt and the American Political Tradition. Winner of the American Political Science Association’s Richard Neustadt Award, Yarbrough’s book is an incredible study of Roosevelt as student at Columbia, as an accomplished historical writer, and as a statesman. We might conclude, Yarbrough observes, that it is Roosevelt’s robust American nationalism, his vigorous spirit, and his environmentalism that produced our national parks which marks him as a prominent president. Indeed, his place on Mount Rushmore, where he sits with George Washington, Thomas Jefferson, and Abraham Lincoln, seems strange otherwise. Unless we count his prescient leadership of an emerging American nation departing from its decentralized past as worthy of remembrance, then it becomes difficult to find his great stature. On this progressive legacy of Roosevelt, Yarbrough focuses much of her scholarly attention. Roosevelt publicly professed admiration for the American Constitution and the ideas of our founding, but departed from them as president, particularly in his second term. He embraced the administrative state before Woodrow Wilson. Roosevelt found no real limits to state power, and believed the federal government indispensable in the active management of the economy. He wanted presidential power to become more, an embodiment of the American people. Redistribution of wealth also had his support. In his New Nationalism speech he stated: “We [the government] should permit it [wealth] to be gained only so long as the gaining represents benefit to the community.” This is the Teddy Roosevelt we need a clearer understanding of, and Yarbrough has certainly provided it.

Jonathan Last’s book What to Expect When No One is Expecting is the subject of the next Liberty Law Talk. Last, a senior writer for the Weekly Standard, points our attention to below replacement level birth rates evident in countries throughout the world (including America since 2008) and the dismal future it promises if things don’t change. In short, Last compels us to wonder who, exactly, will bring the future? However, Last does not come to cast blame on anyone or a particular philosophy, although he notes that our individualism must think more deeply about the requirements of human flourishing. Moreover, the demographic downturn he documents is obviously not just an American or European problem. Just ask the Singapore government, which has been trying to entice, with little success, greater fertility amongst its citizens using all manner of incentives. Last’s purpose is to get us thinking about what it means when a prosperous society of free persons hesitates to fulfill its crucial role in giving birth to and forming the next generation in sufficient numbers. Last’s fact-laden book is challenging, controversial, and also necessary for us to reflect on as we consider the foundations of a liberal society.

This next conversation is with Joshua Hawley, a former clerk to Chief Justice John G. Roberts, Jr., and an associate professor of law at the University of Missouri, about the arc of power exercised by the Supreme Court since the passage of the 14th Amendment. In one sense, we understand directly what the Antifederalist Brutus once opined about its potentially unlimited powers. The Court, Brutus informed, would be the most dangerous branch because its judges “are independent of the people, of the legislature, and of every power under heaven.” Of course, criticisms of the Court’s activism are now part of our political discourse. Indeed, how could they not be given the Court’s performance in any number of decisions? But where does a revival of a limited judiciary begin? Less noted amidst talk of judicial methodology and interpretation that fills our discourse on constraining the judiciary is that our written Constitution is rooted in the principle of self-government and is, ultimately, the people’s document to be interpreted by their voices and practices. Its political structural principles of federalism and separation of powers seem to commend a competitive politics that is largely free of substantive judicial intervention. So, how to get there from here? For that, you will need to listen to Hawley discuss several ways a more targeted focus on self-government might challenge the Court’s self-understanding of its expansive powers.

This Liberty Law Talk is with Hoover Institution fellow Peter Berkowitz on his new book Constitutional Conservatism: Liberty, Self-Government, and Political Moderation. The book deepens Frank Meyer’s conservative fusionist project by adding an Aristotelian and Burkean challenge to both libertarians and conservatives in America. Both groups must lead with political moderation, Berkowitz counsels. One example of such moderation was Ronald Reagan, Berkowitz observes, and this explains much of his success. But this sounds odd, surely Reagan stood for something. Berkowitz’s understanding of moderation, however, is not that of the mealy-mouthed variety, but is found in the application of principles to the politics that public opinion will bear. Moderation may involve, relatively speaking, appearing extreme as one insists on refusing to compromise certain principles. But the substantive point is the bringing to bear of principle within the time and circumstances given to the statesman. Politics, it follows, cannot be reduced to various theoretical commitments like the natural law, free market theories, or autonomistic individualism. And this, I think, most obviously has not been done by many on the Right consistently enough. To do so is to take political representation seriously. Finally, Berkowitz leaves us with the formative role of tradition in a liberal society that liberty and progress must remain in dialogue with or risk dissolution at the hands of the Left, for whom the clock is always behind schedule.

This edition of Liberty Law Talk is a conversation with Vincent Cannato, author of American Passage: The History of Ellis Island, about America’s constitutional and policy history regarding immigration. In this podcast, we discuss the recent Supreme Court decision Arizona v. United States that substantially limited the rights of states to set their own immigration policy apart from the federal government. Cannato recounts the history of the authority exercised by the federal and state governments for immigration which diverges substantially from the holding in Arizona. In addition, we discuss at length the evolution of immigration policy from the early nineteenth century to present day. Our evolving immigration policy, to note one of Professor Cannato’s recent musings on the subject, closely tracks our expectations for the role of the federal government.