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Economic Justice

from the Wall Street Journal, a remembrance of Henry Manne-   A Champion of Law Informed by Economics:

From “Bring Back the Hostile Takeover,” June 26, 2002:

Since Enron, there has been an outbreak of regulatory fever in Washington: A tide of “solutions” has sluiced from the pens of journalists and the mouths of politicians. Apparently forgotten is how Enron and other recent scandals were the direct result of regulatory and judicial efforts to stem abuses in the takeover arena 20 and more years ago. They still haven’t learned just how high the cost of interfering with salutary market forces can be.

Among current proposed guardians of executive morality are auditors, lawyers, analysts, financial intermediaries, independent directors, and government officials. But no proposal involving these actors addresses the real problem. New scandals will continue until we bring back the most powerful market mechanism for displacing bad managers: hostile takeovers.

From “For Milken, Verdict First, Trial Later,” Feb. 3, 1990:

The government wants $1.8 billion in RICO forfeitures from [Michael] Milken and his co-defendants. The government claims that Mr. Milken’s alleged securities infractions were RICO violations, which made Drexel part of a RICO “enterprise,” which means he must forfeit all his Drexel compensation. Kafka, hell; anyone for Torquemada?

Every American’s basic civil liberties are critically endangered by this hysterical, politically inspired drive to demean our financial markets and convict or at least disgrace targeted individuals. That the principal defendant has been a disruptive and unsettling innovator in the usually staid financial world makes it all the more important to be vigilant about possible abuse of fair procedures. We hardly need a regime of civil liberties to protect passive, unventuresome members of the community. Tough business competitors should get at least the same legal fairness we normally give Klansmen or crack dealers.



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A Chance for a Coalition


Conrad Black writes Eric Garner’s America in The National Review.


African Americans must not imagine that, even though they may be the principal and most frequent victims of the police and prosecution and court and prison systems of the United States, at least on a per capita basis, they are the only group that is victimized. So, more frequently than others would imagine, are wealthy or highly placed whites, such as Martha Stewart, industrialist Alfred Taubman, Scooter Libby (former chief of staff to Vice President Dick Cheney), and the late seven-term U.S. senator Ted Stevens. Hispanics, native people, Asians who are not conspicuously wealthy, and poor whites do not fare appreciably better than African Americans, and everyone in the United States, from the president and the wealthiest and most admired citizens down, is, in some measure, a victim of this now terribly warped justice system. No one is safe and everyone pays for it. The legal cartel is riveted on the back of the country like a horse-leech and extracts $1.8 trillion a year from the American economy as the legislators and regulators add 4,000 new measures with weighty sanctions each year, for the delectation of their confrères at the bar. At any time, 1 percent of the entire adult population is incarcerated, at a cost of about $150 billion annually and usually in unconstitutionally inhuman conditions; another 6 or so percent of all adults, male and female, are awaiting conviction (99.5 percent of those tried are convicted, an absurdly implausible number rivaled only by North Korea) or are under supervised release by often pettifogging probation officers at further great cost to the country. There are 48 million convicted felons in the United States, and even if decades-oldunstigmatizing offenses such as failing a breathalyzer or being disorderly at a fraternity party are omitted, this means that approximately 15 percent of American adult males are designated felons. This is an absurd and barbarous number achieved by equal-opportunity multiethnic injustice, albeit unevenly applied. It presents African Americans a chance to form an invincible coalition in whose victory they would be the principal winners.


The inability to see this beyond racial terms is the larger travesty.  The supervising officer at the scene was black.  Garner is very different from Brown.

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Equality Before the Law vs Material Equality


“What makes an outlook “conservative’ is that it is rooted in an attitude about the past rather than in expectations of the future. The first principles of conservatism are propositions about human nature and the way human beings behave in a social context; about limits, and what limits make possible. This practicality, this attention to experience, to workable arrangements, explains why the conservative community can be liberal and tolerant toward its members in ways that the progressive left cannot.

In contrast to the conservative outlook, liberal and radical ideologies are about the future, about desired outcomes. The first principles of the left are the principles of politically constructing a “better world.” Throughout the modern era, the progressive future has been premised on a social contract that would make all of society’s members equal—or at least provide them with equal starting-points.”

“Post-Communist conservatism, then, begins with the principle that is written in the blood of these social experiments. “It is just not true,” as Hayek wrote in The Constitution of Liberty, “that human beings are born equal; . . . if we treat them equally, the result must be inequality in their actual position; . . . [thus] the only way to place them in an equal position would be to treat them differently. Equality before the law and material equality are, therefore, not only different but in conflict with each other.” (my emphasis)

In other words, the rights historically claimed by the left are self-contradicting and self-defeating. The regime of social justice, of which the left dreams, is a regime that by its very nature must crush individual freedom. It is not a question of choosing the right (while avoiding the wrong) political means in order to achieve the desired ends. The means are contained in the ends. The leftist revolution must crush freedom in order to achieve the social justice that it seeks. It is therefore unable to achieve even that justice. This is the totalitarian circle that cannot be squared. Socialism is not bread without freedom, as some maintain; it is neither freedom nor bread. The shades of the victims, in the endless cemetery of 20th-century revolutions, cry out from their still-fresh graves: the liberated future is a destructive illusion. To heed this cry is the beginning of a conservative point of view.”

Excerpt From: Horowitz, David. “The Black Book of the American Left.” Encounter Books, 2013-11-04. iBooks.

This material may be protected by copyright.


Check out this book on the iBooks Store:


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Angela Corey vs Alan Dershowitiz


From Angela Corey’s Checkered Past by Ian Tuttle in National Review:

In June 2012, Alan Dershowitz, a well-known defense attorney who has been a professor at Harvard Law School for nearly half a century, criticized Corey for her affidavit in the Zimmerman case. Making use of a quirk of Florida law that gives prosecutors, for any case except first-degree murder, the option of filing an affidavit with the judge instead of going to a grand jury, Corey filed an affidavit that, according to Dershowitz, “willfully and deliberately omitted” crucial exculpatory evidence: namely, that Trayvon Martin was beating George Zimmerman bloody at the time of the fatal gunshot. So Corey avoided a grand jury, where her case likely would not have held water, and then withheld evidence in her affidavit to the judge. “It was a perjurious affidavit,” Dershowitz tells me, and that comes with serious consequences: “Submitting a false affidavit is grounds for disbarment.”

Shortly after Dershowitz’s criticisms, Harvard Law School’s dean’s office received a phone call. When the dean refused to pick up, Angela Corey spent a half hour demanding of an office-of-communications employee that Dershowitz be fired. According to Dershowitz, Corey threatened to sue Harvard, to try to get him disbarred, and also to sue him for slander and libel. Corey also told the communications employee that she had assigned a state investigator — an employee of the State of Florida, that is — to investigate Dershowitz. “That’s an abuse of office right there,” Dershowitz says.

What happened in the weeks and months that followed was instructive. Dershowitz says that he was flooded with correspondence from people telling him that this is Corey’s well-known M.O. He says numerous sources — lawyers who had sparred with Corey in the courtroom, lawyers who had worked with and for her, and even multiple judges — informed him that Corey has a history of vigorously attacking any and all who criticize her. But it’s worse than that: Correspondents told him that Corey has a history of overcharging and withholding evidence.

The Zimmerman trial is a clear case of the former and a probable case of the latter. Zimmerman was charged with second-degree murder, also known as “depraved mind” murder. The case law for that charge, an attorney who has worked in criminal prosecution outside Florida tells me, is near-unanimous: It almost never applies to one-on-one encounters. Second-degree murder is the madman who fires indiscriminately into a crowd or unlocks the lions’ cage at the zoo. “Nothing in the facts of this case approaches that.” Which Angela Corey, a veteran prosecutor, should have known, and a grand jury would have told her. In fact, both the initial police investigation and the original state attorney in charge of the case had determined exactly that: There was no evidence of any crime, much less second-degree murder

But that did not stop Corey from zealously overcharging and — the facts suggest — withholding evidence to ensure that that charge stuck.


Unfortunately public office attracts such people.  A true liberal should be outraged.

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Logic vs Partisanship

As much as we could wish otherwise the courts do often seem to vote in a political manner.  The president’s power to appoint justices for life has impact far beyond his term in office.

The SCOTUS review of Obama Care is inciting claims of a partisan court.  Some question the legitimacy of the courts, but that seems to depend which view the courts uphold.

Charles Krauthammer questioned the legitimacy concerns in Obama vs SCOTUS in The National Review, 4/4/12.


Having lost the argument, what to do? Bully. The New York Times loftily warned the Supreme Court that it would forfeit its legitimacy if it ruled against Obamacare, because with the “five Republican-appointed justices supporting the challenge led by 26 Republican governors, the court will mark itself as driven by politics.”

Really? The administration’s case for the constitutionality of Obamacare was so thoroughly demolished in oral argument that one liberal observer called it “a train wreck.” It is perfectly natural, therefore, that a majority of the Court should side with the argument that had so clearly prevailed on its merits. That’s not partisanship. That’s logic. Partisanship is fourDemocrat-appointed justices giving lockstep support to a law passed by a Democratic Congress and a Democratic president — after the case for its constitutionality had been reduced to rubble.

HKO comments:

I am certainly no constitutional lawyer or scholar, but there certainly seems to be a gap between how the constitution reads and how we want it to read.  This battle, regardless of how the Supreme Court rules, highlights a fundamental difference between the two parties in the balance of power between the individual and the state.

Over time there is a vacillation between liberal and conservative periods.  During more liberal periods the courts have expanded the power of the state. During more conservative periods there may be less rulings expanding the power of the state, but the precedence from the liberal periods are most often left in tact.   Thus the dynamic over time is towards a more empowered state.

There are certainly rulings where a justice’s decision may defy the partisan labels.

Over time the ideas that we use to discern political labels have also changed. Brandeis, considered a very liberal judge in history, often ruled against the state in matters of individual rights and feared the “bigness” of government  as much as he feared the negative impact that the “bigness” of large corporations were having on the society.