Freespace

Genome quilts

Now this is very cool: quilts based on the human genome! 

(HT: my mother)

Ron Paul endorses lunatic theocratic paleo-conservative? Imagine!

Holy cow, you mean, Ron Paul is aligned with loopy "America is a Christian nation" paleo-conservatives like Chuck Baldwin? Whoda thunk it?

My review of Holzer's book on Clarence Thomas

The New York University Journal of Law and Liberty has agreed to publish my review of Henry Mark Holzer's book The Supreme Court Opinions of Clarence Thomas.

This review was originally commissioned by the Journal of Ayn Rand Studies, and then rejected, believe it or not, because a (not very anonymous) peer-reviewer--a person who is not an attorney and not educated in constitutional theory--disagrees with my views regarding constitutional interpretation. This reviewer (not Prof. Sciabarra) contended that my review was "harsh," "embittered," "naive," and, most remarkably, while acknowledging that it was "unquestionably learned," complained that it was a "one sided" "polemic." The degree to which these terms can really be applied to my article can be judged by readers themselves, who can download the paper on SSRN. I don't think it is harsh, embittered or polemical at all, although of course I have strong opinions, and consider the book under review to be sub-par.

I think it deeply improper and unprofessional for an article on legal theory to be "peer" reviewed by a person who is not a legal scholar, and that this person would be allowed to reject a paper for publication simply because he disagreed with my views, rather than because the article failed to comply with scholarly standards or failed to make a serious argument. In fact, the article is not a polemic, but an analysis. Obviously it is "one-sided," in that I take a position and argue for it. That, of course, is what legal scholarship is about, and I think I make a pretty serious, well-supported defense of my position.

I complained about this, and Prof. Sciabarra was extraordinarily polite to me in response, but felt his hands tied by the Journal's procedural rules. I respect that, and I never thought an article on Clarence Thomas really appropriate for a journal about Ayn Rand anyway. Nevertheless I believe the matter was poorly handled and that the Journal acted improperly in referring my article to a non-lawyer and allowing that person to block publication of a perfectly reasonable scholarly book review simply because he personally disagrees with my views of constitutional interpretation. Instead of blocking publication, that person ought to have written a rebuttal, and we could have had an interesting exchange.

I am very glad that the article will be in the NYU Journal of Law and Liberty.

More coverage about Merrifield

Thanks to the Yuba Appeal-Democrat, Cato@Liberty, and Positive Liberty for kind words about the Merrifield case.

Why the Merrifield decision is important

This week’s decision by the Ninth Circuit, that the state cannot abuse its licensing laws solely to protect some companies against fair competition by others, is an important new precedent in the law of economic liberty, and here’s an example of why. PLF recently filed a lawsuit against the state of Oregon over a licensing law for moving companies: the law requires a moving company basically to get permission from its own competitors before it can go into business. When a person applies for a license, that application is subject to objections by existing businesses, and an objection pretty much means that the person won’t get his license. You can see more information about the case in this story from today’s Channel 16 news in Eugene, Oregon.

We filed that lawsuit a while ago, and the state has, of course, filed a motion to dismiss. In their motion, they contend that the law is constitutional because the state has the authority, if it wants, to protect some businesses against fair competition by others. Now, that argument was made before the Merrifield decision was issued. Given the Ninth Circuit’s resolution, it’s pretty clear that the Oregon mover licensing law violates the Fourteenth Amendment and deprives people like our client, Adam Sweet, of their right to earn a living.

Friday art

Bedouin Arab by John Singer Sargent

From the commonplace book:

The Man who pretends to be a modest enquirer into the truth of a self evident thing is a Knave....  He who stands doubting of what he intends whether it is Virtuous or Vicious knows not what Virtue means. no man can do a Vicious action & think it to be Virtuous, no man can take darkness for light. he may pretend to do so & may pretend to be a modest Enquirer but he is a Knave. --William Blake

(William Blake: Complete Writings with Variant Readings 386 (1969))

Big economic liberty win

Got a decision today in Merrifield v. Lockyer, the economic liberty case I argued before the Ninth Circuit a year and a month ago. It's a huge victory:

We conclude that mere economic protectionism for the sake of economic protectionism is irrational with respect to determining if a classification survives rational basis review. In doing so, we agree with the Sixth Circuit in Craigmiles and reject the Tenth Circuit’s reasoning in Powers v. Harris, 379 F.3d 1208, 1218-19 (10th Cir. 2004). Powers rejected the Sixth Circuit’s conclusion that economic protectionism for its own sake is irrational. Id. We do not disagree that there might be instances when economic protectionism might be related to a legitimate governmental interest and survive rational basis review. However, economic protectionism for its own sake, regardless of its relation to the common good, cannot be said to be in furtherance of a legitimate governmental interest.

I'll blog on this more later.

Update: Here is PLF's press release. You can read more about PLF's defense of economic freedom and property rights here.

Update 2: I have a fun exchange going on about the case in the comments at The Volokh Conspiracy.

Wish I'd known about this sooner

My favorite poetry critic, Joan Houlihan, has a weblog. She's the author of, among other things, the delightful essay "The Best I Can Do This Year."

Word of the day

"Tohubohu": chaos and disorder.