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Reckless Caution: the Perils of Judicial Minimalism
RECKLESS CAUTION: THE PERILS OF JUDICIAL MINIMALISM Tara Smith* ABSTRACT Judicial Minimalism is the increasingly popular view that judges decide cases properly to the extent that they minimize their own imprint on the law by meticulously assessing “one case at a time,” ruling on narrow and shallow grounds, eschewing broader theories, and altering entrenched legal practices only incremen- tally. Minimalism’s ascendancy across the political spectrum, be- ing embraced by advocates of both right-wing and left-wing ide- ologies, is touted as a sign of its appropriate value-neutrality. This paper argues that such sought-after neutrality is, in fact, untenable. While others have objected to some of Minimalism’s specific tenets, critics have missed its more fundamental failing: it is an incoherent concept. On analysis, Minimalism’s several planks and rationales prove mutually contradictory and, corre- spondingly, offer conflicting guidance to judges. Thus the reason that Minimalism can appeal to people of such disparate substan- tive views is that in practice, it is merely a placeholder invoked to * Many people have offered helpful discussion of the ideas developed in this paper or feedback on earlier drafts. I am grateful to audiences at Oxford’s Uehiro Center and the University of Virginia, and in particular to Tom Bowden, Onkar Ghate, Wesley Hottot, Loren Lomasky, Al Martinich, Matt Miller, Adam Mossoff, Matt O’Brien, Greg Salmieri, Julian Savulescu, John Simmons, and Kevin Stuart. 347 348 New York University Journal of Law & Liberty [Vol. 5:347 sanction a grab-bag of desiderata rather than a distinctive method of decision-making that offers genuine guidance. -
Bibliography
Bibliography Archival Insights into the Evolution of Economics (and Related Projects) Berlet, C. (2017). Hayek, Mises, and the Iron Rule of Unintended Consequences. In R. Leeson (Ed.), Hayek a Collaborative Biography Part IX: Te Divine Right of the ‘Free’ Market. Basingstoke, UK: Palgrave Macmillan. Farrant, A., & McPhail, E. (2017). Hayek, Tatcher, and the Muddle of the Middle. In R. Leeson (Ed.), Hayek: A Collaborative Biography Part IX the Divine Right of the Market. Basingstoke, UK: Palgrave Macmillan. Filip, B. (2018a). Hayek on Limited Democracy, Dictatorships and the ‘Free’ Market: An Interview in Argentina, 1977. In R. Leeson (Ed.), Hayek a Collaborative Biography Part XIII: ‘Fascism’ and Liberalism in the (Austrian) Classical Tradition. Basingstoke, England: Palgrave Macmillan. Filip, B. (2018b). Hayek and Popper on Piecemeal Engineering and Ordo- Liberalism. In R. Leeson (Ed.), Hayek a Collaborative Biography Part XIV: Orwell, Popper, Humboldt and Polanyi. Basingstoke, UK: Palgrave Macmillan. Friedman, M. F. (2017 [1991]). Say ‘No’ to Intolerance. In R. Leeson & C. Palm (Eds.), Milton Friedman on Freedom. Stanford, CA: Hoover Institution Press. © Te Editor(s) (if applicable) and Te Author(s) 2019 609 R. Leeson, Hayek: A Collaborative Biography, Archival Insights into the Evolution of Economics, https://doi.org/10.1007/978-3-319-78069-6 610 Bibliography Glasner, D. (2018). Hayek, Gold, Defation and Nihilism. In R. Leeson (Ed.), Hayek a Collaborative Biography Part XIII: ‘Fascism’ and Liberalism in the (Austrian) Classical Tradition. Basingstoke, UK: Palgrave Macmillan. Goldschmidt, N., & Hesse, J.-O. (2013). Eucken, Hayek, and the Road to Serfdom. In R. Leeson (Ed.), Hayek: A Collaborative Biography Part I Infuences, from Mises to Bartley. -
Money Talks a Realist Constructivist Account of the Motives of 21St Century Plutocrats
Graduate School Master of Science in Global Studies Major: Political Science Course: SIMV07 Term: Spring 2017 Supervisor: Alexander von Hagen-Jamar Money Talks A Realist Constructivist Account of the Motives of 21st Century Plutocrats Author: Pauliina Parviainen Abstract Plutocracy is a subject that has not traditionally attracted the interest of scholars in the disciplines of International Relations and Political Science. This is unfortunate, as the number and importance of affluent private individuals in global affairs has steadily increased in recent decades. Since most existing academic research on contemporary plutocrats focuses on philanthropists and other ‘benefactors’, this research examines what drives the behaviour of the so-called ‘malefactors’ – in this case, enormously wealthy citizens from the Persian Gulf who fund Islamist extremism and the Koch brothers who fight against climate change mitigation efforts and U.S. government regulations. The research is guided by a realist constructivist hypothesis according to which plutocrats use their material assets to advance ideological causes that in the long run further increase their economic wealth. Qualitative content analysis was performed on select texts that dealt with these actors’ presumable and stated motives. The analysis of the Koch brothers suggested that the logic behind their political adventures closely followed this hypothesis. However, the case of Gulf plutocrats only partially confirmed the hypothesis, as ideological and identity-related reasons prevailed over material considerations in these actors’ motives. Keywords: First Image, Koch, Plutocrat, Realist Constructivism, Terrorism Financing Words: 19 952 Contents: 1. Introduction 1 1.1 Research problem and research question 2 1.2 Structure of the thesis 4 2. -
2020 Alexander Hamilton Award | Manhattan Institute
5:00PM EDT The Alexander Hamilton Award was instituted to celebrateMANHATTAN and INSTITUTE’S honor TWENTIETH those ANNUAL individuals who have made exceptional contributions to the nation’s civic and intellectual life. We chose to name the award after Hamilton because he was a man of ideas and action. As aide-de-camp to Washington during PRESIDENT, MANHATTAN INSTITUTE the Revolution, the primary author of the Federalist Papers, and the nation’s first REMARKS Treasury secretary, Hamilton, perhaps more than anyone,The Alexander set Hamiltonthe course Award was forinstituted America’s to Paul E. Singer celebrate and honor those individuals who have bright future and prosperity over the net CHAIRMAN OF THE BOARD, MANHATTAN INSTITUTE two centuries.made exceptional Our contributions honorees to the nation’s this year have eachcivic madeand intellectual Hamiltonian life. We chose contributionsto name the to America,award after and Hamilton the because Manhattan he was a man Institute of is privilegedideas andto action. honor As aide-de-camp them tothis Washington evening. The Alexanderduring the HamiltonRevolution, the Awardprimary author was of instituted the to celebrateFederalist andPapers, honor and the nation’s those first Treasury individuals INTRODUCED BY MICHAEL B. MUKASEY & HEATHER R. HIGGINS who havesecretary, made Hamilton, exceptional perhaps more thancontributions anyone, to the nation’sset the course civic for America’s and bright intellectual future and life. We choseprosperity to name over the the next award two centuries. after Our Hamilton becausehonorees he was this yeara man have eachof made ideas Hamiltonian and action. As aide-de-campcontributions to America,to Washington and the Manhattan during INTRODUCED BY PAUL E. -
The Moral CASE for Capitalism
the May 2007 / Volume 3, Issue 4 / the-undercurrent.com Undercurrent “It was as if an underground stream flowed through the country and broke out in sudden springs that shot to the surface at random, in unpredictable places.” Ayn Rand INSIDE THE MORAL case THIS ISSUE Freedom of Speech: foR caPitaLism An Interview with Dr. Achieving the good requires protecting freedom, Onkar Ghate not enforcing sacrifice. page 3 by Noah Stahl In Defense of Income It is widely acknowledged that capitalist countries are the most successful at Inequality creating wealth and raising their citizens’ overall standard of living. People page 7 who live in such countries enjoy access to bigger homes, better-trained doctors, more advanced technology, and higher paying jobs. By contrast, those living under collectivist systems like the European welfare states often Atlas Shrugged Essay endure long waits for poorer quality medical help and have far less choice in the things they buy and less money to buy them with. Studies like the Index of Economic Contest Freedom consistently find that higher measures of economic liberty correlate strongly with better page 7 standards of living: the freer people are, the richer they become. But in spite of all this, capitalism is criticized. Its detractors complain that it creates an unjust divide between rich and poor—or that employers don’t pay employees their rightful due—or that Speakers, Events, and the poor are “denied access” to basic needs like education, medical care, and retirement income. Meetings Even though the poor in capitalist countries enjoy far greater resources and opportunities than their counterparts in collectivist nations, critics denounce capitalism for allowing some people to page 8 (Continued on Page 2) OBJECTIVISM The Undercurrent’s cultural commentary Campus Commentary On Free Speech is based on Ayn Rand’s philosophy, University Mission Statements: False Objectivism. -
THE MYTH ABOUT AYN RAND and SOCIAL SECURITY by Onkar Ghate | June 19, 2014
GOVERNMENT & BUSINESS INDIVIDUAL RIGHTS SHARE THE MYTH ABOUT AYN RAND AND SOCIAL SECURITY by Onkar Ghate | June 19, 2014 You know your critics are desperate when they accuse you of hypocrisy without bothering to investigate your stated principles. The desperation is especially palpable if you’ve explained how those principles apply to the very action you’re being criticized for. So it is with Ayn Rand and Social Security. When fans voice her moral critique of the welfare state, many opponents respond by attacking her. She collected Social Security, they say, even though she opposed the program’s very existence. What a hypocrite! But what a gift, because she’s shown that her philosophy is unlivable. Case closed. If only real thinking were this easy. From the archival evidence I’ve seen, Rand did collect Social Security. But isn’t it relevant that Rand argued in printfor the consistency of this position, a fact any informed critic should know? We might end up disagreeing with Rand’s analysis, but doesn’t plain decency require that we first examine it? So let’s do that. Rand morally opposes the welfare state because she’s an unwavering advocate of the individual’s moral right to his life, his liberty, his earned property, and the pursuit of his own happiness. She viewed America as putting an end to the idea that the individual must live for king, neighbor or pope. For the first time in history the individual was declared free to live for himself. It was not handouts or entitlement programs that the millions of individuals who came to America’s shores sought, but freedom. -
Yaron Brook Speaks to a Wide Array of Audiences, Continued from Page 1
aynrand.org/impact Volume 19, Number 5, May 2013 Yaron Brook Speaks Objectivist Summer Conference Is Almost Here . to a Wide Array Register Today! of Audiences history to psychology, music and current events. In addition, there is plenty of time to his spring ARI executive socialize with others who share some of director Yaron Brook T your deepest values. It is common to see traveled all over the world. people enjoying conversations with other He participated in debates, attendees late into the night. Those in lectured on college campuses, attendance vary widely in age, occupation sat on panels and much more, and the number of years they have been discussing topics ranging familiar with Ayn Rand’s ideas. Some have from capitalism and economic only recently discovered Rand, while others history to law and taxes. have attended the Objectivist summer Throughout his travels, t’s not too late to register for the annual Objec- conference for more than two decades. Some are Dr. Brook advocated Ayn Rand’s ideas and their tivist summer conference, which takes place this students still deciding which career to pursue while application to current issues to thousands of peo- I year July 5–11 in Chicago at the Westin Michigan others are well established in business, academia ple, ranging from college students and academic Avenue Hotel. and other fields. Many attendees have communi- scholars to policy activists and congressional staff- The conference offers a unique opportunity cated to ARI in past years that they have met their ers. Below is a sampling of Dr. Brook’s speaking to meet other fans of Ayn Rand. -
John Dewey, Maria Montessori, and Objectivist Educational Philosophy During the Postwar Years
73 Historical Studies in Education / Revue d’histoire de l’éducation ARTICLES / ARTICLES “The Ayn Rand School for Tots”: John Dewey, Maria Montessori, and Objectivist Educational Philosophy during the Postwar Years Jason Reid ABSTRACT Objectivism, the libertarian philosophy established by Ayn Rand during the postwar years, has attracted a great deal of attention from philosophers, political scientists, economists, and English professors alike in recent years, but has not received much notice from historians with an interest in education. This article will address that problem by discussing how Rand and her followers established a philosophy of education during the 1960s and 1970s that was based, in part, on vilifying the so-called collectivist ideas of John Dewey and lionizing the so-called individualist ideas of Maria Montessori. Unfortunately, the narrative that emerged during this time seriously misrepresented the ideas of both Dewey and Montessori, resulting in a some- what distorted view of both educators. RÉSUMÉ L’objectivisme, philosophie libertaire conçue par Ayn Rand dans la période de l’après-guerre, a suscitée beaucoup d’attention de la part des philosophes, politologues, économistes et profes- seurs de littérature anglaise, mais rien de tel chez les historiens de l’éducation. Cet article cor- rige cette lacune, en montrant comment durant les années 1960 et 1970 Rand et ses partisans ont établi une philosophie de l’éducation qui s’appuyait, en partie, sur la diffamation des idées prétendues collectivistes de John Dewey et l’idolâtrie de l’individualisme de Maria Montessori. Malheureusement, leurs travaux ont donné une fausse image des idées de Dewey et Montessori et conséquemment ont déformé les théories ces deux éducateurs. -
Discovery Volume 26 | Number 2 | October 2020 Discovery BELIEVE in PEOPLE
A PUBLICATION OF KOCH COMPANIES Discovery Volume 26 | Number 2 | October 2020 Discovery BELIEVE IN PEOPLE I have a new book coming out Nov. 17: “Believe in People: Bottom-Up Solutions for a Top-Down World.” Written with Brian Hooks, CEO of Stand Together, this book describes a central aspect of my life’s work — to help bring about a society in which everyone has the opportunity to realize their potential and succeed. When I started writing this book about five years ago, I had no idea it would be coming out during a deadly pandemic, massive record increases in governmental controls and spending, and the most divisive political atmosphere with the greatest civil unrest in my lifetime. Yet the book is perfectly timed for this troubling moment. Because it explores how every person can help tackle society’s biggest problems, whatever they may be. The book’s title, “Believe in People,” is really a summation of my lifelong philosophy. The central point is that every person has a unique gift. Each of us can use our gift to improve our lives by helping others improve theirs. The more we do so, the more everyone will benefit. I have spent Charles Koch, chairman and CEO – Koch Industries the last 60 years in business and philanthropy striving to Brian Hooks, chairman and CEO – Stand Together empower people to become the best version of themselves and contribute to the best possible society. Like my previous books, “Believe in People” draws on While anyone can be a Social Entrepreneur, not everyone the principles of scientific and social progress that have knows where to start. -
Silver Spoon Oligarchs
CO-AUTHORS Chuck Collins is director of the Program on Inequality and the Common Good at the Institute for Policy Studies where he coedits Inequality.org. He is author of the new book The Wealth Hoarders: How Billionaires Pay Millions to Hide Trillions. Joe Fitzgerald is a research associate with the IPS Program on Inequality and the Common Good. Helen Flannery is director of research for the IPS Charity Reform Initiative, a project of the IPS Program on Inequality. She is co-author of a number of IPS reports including Gilded Giving 2020. Omar Ocampo is researcher at the IPS Program on Inequality and the Common Good and co-author of a number of reports, including Billionaire Bonanza 2020. Sophia Paslaski is a researcher and communications specialist at the IPS Program on Inequality and the Common Good. Kalena Thomhave is a researcher with the Program on Inequality and the Common Good at the Institute for Policy Studies. ACKNOWLEDGEMENTS The authors wish to thank Sarah Gertler for her cover design and graphics. Thanks to the Forbes Wealth Research Team, led by Kerry Dolan, for their foundational wealth research. And thanks to Jason Cluggish for using his programming skills to help us retrieve private foundation tax data from the IRS. THE INSTITUTE FOR POLICY STUDIES The Institute for Policy Studies (www.ips-dc.org) is a multi-issue research center that has been conducting path-breaking research on inequality for more than 20 years. The IPS Program on Inequality and the Common Good was founded in 2006 to draw attention to the growing dangers of concentrated wealth and power, and to advocate policies and practices to reverse extreme inequalities in income, wealth, and opportunity. -
Charles Koch Institute
efile GRAPHIC rint - DO NOT PROCESS As Filed Data - DLN:93493319121109 Return of Organization Exempt From Income Tax 0MB No 1545-0047 Form990 Under section 501(c), 527, or 4947(a)(1) of the Internal Revenue Code (except private foundations) ~ 2018 II> Do not enter social security numbers on this form as 1t may be made public Dc'JKtI1mc'nt oftht:" Open to Public II> Go to www.irs.gov/Form990 for instructions and the latest information. Trt'a ... un Inspection lntc:m~li Re\ emit:" 'ien 1cc: A For th e 2019 ca en d ar vear, or t ax vear b eqmnmq 01 --01 2018 , an d en d'mq 12 --31 2018 C Name of organization B Check 1f applicable D Employer 1dent1f1cat1on number Charles Koch Institute D Address change 27-4967732 D Name change % SUSAN MOTIFF D In1t1al return Doing business as D Final return/terminated E Telephone number D Amended return Number and street (or PO box 1f mall 1s not delivered to street address) IRoom/suite 1320 N Courthouse Road Ste 500 D Appl1cat1on pending (703) 875-1658 City or town, state or province, country, and ZIP or foreign postal code Arlington, VA 22201 G Gross receipts$ 60,913,7S1 F Name and address of principal officer H(a) Is this a group return for BRIAN HOOKS 1320 N COURTHOUSE ROAD STE 500 subord1nates7 DYes ~No ARLINGTON, VA 22201 H(b) Are all subordinates 1ncluded7 DYes DNo I Tax-exempt status ~ 501(c)(3) D 501(c) ( ) ~ (insert no ) D 4947(a)(1) or D 527 If "No," attach a 11st (see 1nstruct1ons) J Website: II> WWW CHARLESKOCHINSTITUTE ORG H(c) Group exemption number II> L Year of formation 2011 DE K Form of organization ~ Corporation D Trust D Assoc1at1on D Other II> I M State of legal dom1c1le . -
THE FUTURE of CONSERVATIVE FOREIGN POLICY November 30, 2018
Texas National Security Review POLICY ROUNDTABLE: THE FUTURE OF CONSERVATIVE FOREIGN POLICY November 30, 2018 Table of Contents 1. “Prompt Essay: The Future of Conservative Foreign Policy,” by Colin Dueck 2. “The Struggle for Conservative Foreign Policy,” by Elliott Abrams 3. “Libertarianism, Restraint, and the Bipartisan Future,” by Emma Ashford 4. “The Trump Doctrine: The Future of Conservative Foreign Policy,” by John Fonte 5. “Freedom, Defense, and Sovereignty: A Conservative Internationalist Foreign Policy,” by Henry R. Nau 6. “The Conservative Realism of the Trump Administration's Foreign Policy,” by Nadia Schadlow 7. “Six Decades Without a Conservative Foreign Policy,” by Kelley Beaucar Vlahos 8. “A Conservative Foreign Policy: Drawing on the Past, Looking to the Future,” by Dov S. Zakheim Policy Roundtable: The Future of Conservative Foreign Policy https://tnsr.org/roundtable/policy-roundtable-the-future-of-conservative-foreign-policy/ - article Texas National Security Review 1. The Future of Conservative Foreign Policy By Colin Dueck The Trump era has triggered an intense, yet useful discussion on the political right and center-right about the proper direction of American foreign policy. Conservatives within the United States — like Americans generally — have oscillated between realist and idealist interpretations of world affairs, just as they have between military intervention and non- intervention, always trying to find the right balance. But American conservatives have also made these choices in their own characteristic ways. In particular, a recurring tension has long existed between placing emphasis on national versus international priorities. Conservative nationalists have tended to stress U.S. sovereignty,1 while conservative internationalists have tended to stress the need for U.S.