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Missing Issues by George W. Liebmann Issue 100 - January 30, 2008 Americans in both parties report themselves uninspired by the current crop of Presidential candidates. Yet Americans know that significant domestic problems are unaddressed: that the public high school system is a disaster area; that the savings rate is nonexistent, being discouraged by over-liberal credit and justified fear of eventual inflation; that transportation infrastructure is deteriorating; that both local and national policies favor sprawl development and the mismanagement of public lands; that families with young children are under great economic pressure, while the elderly are the darlings of the tax and benefit systems; and that police, prison, and judicial bureaucracies are ever-expanding. The cause of these difficulties is found in the over-centralization of domestic government; in what Paul Freund described as "apoplexy at the center and anemia at the extremities." That in turn is the product of wars, both real and rhetorical (the Cold War, the wars on poverty, drugs, and terrorism), as well as a by-product of the Depression, when denial of direct federal authority stimulated resort to conditional grants to state and local government, destructive of the competence of both donor and recipient. The result resembles Tocqueville's description of the ancien regime : "One set of people did the actual administration; another set laid down the abstract principles on which all administration ought to be founded; one set took the particular measures indicated by routine; the other set proclaimed general laws without ever thinking of the means to apply them; one set had the conduct of affairs; the other set, the control of mind." Failure of leadership has been aggravated by erosion of the devices once provided for selection of high public officers: the Electoral College; its successor, the party convention; and the indirect election of Senators. Tocqueville urged an opposite development: "Able men retire from the political arena, in which it is so difficult to retain their independence, or to advance without becoming servile...the American republics will be obliged more frequently to introduce the plan of election by an elected body into their system of representation or run the risk of perishing miserably among the shoals of democracy." The products of a system are rarely constructive critics of it. President Nixon's timid efforts on behalf of revenue sharing are almost the lone recent exception. Tax sharing, like that adopted in the major Western European countries is nowhere on the political agenda. One party favors Washington control; the other disparages anything that might enhance the legitimacy and size of government. Since the demise of the tax reforms fostered by President Reagan and Senator Bradley and the re-institution of preferences for capital gains, Tocqueville' description of the French tax system has become apropos: "in France, the nobles retained to the very end exemption from taxation to console them for having lost the right to govern... taxation had for its object not to reach those most capable of paying it but those least able of protecting themselves." There are other measures that are not on the agenda. There are efforts to foster self-governing public charter schools, but no suggestion that all state schools be given their own boards, as in Britain, Australia, New Zealand, and parts of Germany. The Democrats, urged on by teachers' unions, foster centralization at every turn; the Republicans tilt at the windmill of privatization and vouchers without educating the public as to how bad the schools are. The taxation of families with small children has vastly increased since the 1960s, with increases in the rate and base of the payroll tax and a decade in which personal exemptions were eroded prior to their indexing. The Norwegians and Canadians have effectively devolved to families responsibility for pre-school care by providing adequate tax credits; the American approach involves subsidies and credits for institutional care only. Overreaching federal legislation mandates only criminal-law approaches to the 'drug war'. Schools and colleges are reluctant to assume responsibility for testing and treatment programs when the effect of so doing may be to disclose law violations by their students. Despite forty years of constant use levels and a growing flood of corruption and dirty money, even the most modest state experiments are precluded by law and opposed by a federal propaganda machine. The elderly receive expanding and unsustainable social benefits. The devices that other nations have used to foster mutual aid, family responsibility, and self-help, incentives for accessory and duplex apartments and small tax concessions for cooperatives of the elderly, are unspoken of. The troubled portions of cities are showered with federal programs by the Democrats and ignored by the Republicans. The cooperative, developer-sponsored devices for block-by-block renewal known as 'land readjustment' are legally unauthorized in the United States, though responsible for the post-war renewal of Japanese, Korean and European cities. Although business improvement districts with assessment powers florish in New York, their creation elsewhere is anathema to municipal bureaucracies and prevented by state law. Armed with the printing press, the federal Congress, President and bureaucracy, unlike their local counterparts, are fiscally undisciplined. No one, after Katrina and the savings and loan and sub-prime mortgage debacles can urge the superior efficiency of federal administration. No state could afford the orgy of prison-building that is the product of the federal sentencing guidelines. Until recently, the national government prevented congestion pricing on important public roads, and neither party has rushed to embrace it, though it is the only device that can give hard-pressed commuters relief in the short term. The antiquated regimes governing grazing and mineral rights on public lands are defended by the Republicans at the instance of business interests, their survival also owes much to the Democratic hostility toward any form of devolution or privatization. The suggestions of the Comptroller General, David Walker, a Democrat, have been anathema to both parties. The Republicans are intent on buying votes, as with the ethanol and farm-subsidy legislation and much of the defense budget; the Democrats fear that the punch bowl might be removed as they approach the table. Someday, one of our politicians besides the doctrinaire Congressman Paul may re-discover the Messrs. Jefferson and Brandeis. He or she will receive no help from our press, which is now more centralized than the government, but may find greater popularity than the current crop of candidates. George Liebmann, a Baltimore lawyer and currently a Visiting Scholar at Wolfson College, Cambridge, is the author of a number of books on local government, including Solving Problems Without Large Government (Praeger,1999), reprinted as Neighborhood Futures (Transaction Books, 2004) -------------------------------------------------------------------------------- © 2008 American Conservative Union Foundation 1007 Cameron Street, Alexandria, VA 22314 Tel: 703.836.8602

Move beyond school voucher fantasy to focus on real reforms By George Liebmann Baltimore Sun,January 6, 2008 The recent, ringing defeat of a referendum on school vouchers in Utah - generally thought of as America's most conservative state - should be a wake-up call to critics of our public school system. The proposal failed for several reasons apart from the might of the teachers unions. Chief among these is that it was perceived as a solution in search of a problem: an effort by a group of doctrinaire conservatives to sell an intellectually tidy "free market" panacea without taking the trouble to first convince the electorate that schools, and particularly high schools, have serious flaws. The fact is, if not for the obstructionism of the teachers unions, schools could be fixed with the scalpel of reform rather than the sledgehammer of vouchers. Consider: Most parents are generally pleased by the state of public high schools. (The exception is the inner cities, where vouchers do have a constituency - albeit one not often exploited by conservatives.) Most parents graduated from such institutions and feel that they turned out just fine. Moreover, public schools perform many valuable services. These include getting offspring out of the house when they are at their most difficult; transporting them to distant locations free of charge; providing free, or at least very cheap, lunches and sometimes breakfasts too; introducing them to the opposite sex in a controlled environment; providing some physical activity, thus preventing them from being couch potatoes; providing spectator sports to entertain them on weekends; instilling some basic literacy and the ability to read clocks and timetables; and, at the end of the process, bestowing a diploma entitling the recipient to further subsidized education. The benefits of the system are obvious, its costs delayed and diffuse. Though few realize it, the system is one of the most expensive in the world, and large portions of its costs take the form of bricks, mortar, "Cadillac" health insurance policies and defined-benefit teacher pensions. More consequential are the costs its graduates will pay in middle life for deficiencies in scientific and mathematical training, as skilled American jobs are exported and properly trained workers from abroad are imported. Test after test and commission after commission has decried the fact that American schools are close to the bottom of the league in these subjects, and that differentials with foreign countries grow greater at higher grade levels. Parents indulge the illusion that our foreign competitors have elitist systems, not universal ones, but such is no longer the case: Their secondary-school completion rates frequently exceed ours. Teacher shortages are decried, but the only remedies acceptable to unions and the politicians that fear them are scholarships for college students willing to become teachers - not extra pay for scarce disciplines. But scholarships do not pay mortgages and children's college tuitions, leading science teachers to leave the system as their families mature. Then there are certification procedures requiring a year of education courses to enter the system and two or three years to become a school administrator. It would be nice if conservatives ceased dreaming Milton Friedman's dreams of a more privatized system and got down to brass tacks. Our public schools need three major reforms: building-level governance (like that provided by the 1988 Education Act of the Thatcher government in England); a reduction of certification requirements to not more than one term of education courses; and differential pay for teachers in scarce disciplines. Each of these reforms has a potential constituency: parents and teachers frustrated by bureaucracies for the first; liberal arts graduates and retiring military and civil servants for the second; and the business, scientific, medical and higher-education community for the third. The energy applied to statewide voucher schemes should be directed to these reforms. If teachers unions resist them as obstinately as in the past, the public arguments over them will make the case for vouchers more obvious. George W. Liebmann, a Baltimore lawyer, is executive director of the Calvert Institute for Policy Research and the author of "The Agreement: How Federal, State and Union Regulations are Destroying Public Education in Maryland." His e-mail is georgeliebmann2@verizon.net.
Clinton Coronation? by George Liebmann Conservative Battleline Online Issue 95 - November 7, 2007 A rash of recent newspaper stories have proclaimed, a year in advance of the Presidential election, Sen. Hillary Clinton to be the next Democratic nominee, and the next President. The fixation of these stories is on campaign contributions and poll results, a sort of ‘inside baseball’ that our great newspapers now seem to regard as central to their informing function. But the oceans of ink expended in recirculating data provided by campaign organizations shed remarkably little light on what her interests in life are, what sort of public officer she has been, what her education has been, what methods she regards as acceptable or unacceptable, what campaign promises she has made and what their implications are, what sorts of people she surrounds herself with, what standards she will apply in making appointments, whether her political style is characterized by candor or the opposite, what importance she attaches to the less fashionable guarantees of the Bill of Rights, the vertical separation of powers, or federalism and localism, whether she is tolerant or vengeful in her attitude to those who differ, and whether she is a realist, a chauvinist, an opportunist, or a ‘liberal imperialist’ in her approach to international relations. Such questions have not been seriously asked about her, or about any of the other candidates. They deserve answers. The conviction of many that Mrs. Clinton’s presidency will be the Clinton Presidency redux finds little support in history. Men and women equipped with power do not necessarily behave as their close relatives have done. For this we have the example of the current President, as well as innumerable illustrations from the history of monarchies. Filial ties, based on a common upbringing and social background, are apt to be deeper than spousal ones in predicting political behavior, even that of parties to a less unconventional marriage than that of the Clintons. The behavior of Edward VIII, we may recall, bore little resemblance to that of either his father or his brother. Kaiser Wilhelm II did not vindicate the hopes placed in his short-lived father. The list of available examples is a long one. Bill Clinton, a man who desired to be universally loved, may be regarded as the most benign emigrant from Arkansas since Al Capp’s Schmoo. The bunker may be his wife’s natural habitat. What we do know prompts more questions. What, to ask a very British question, is Mrs. Clinton’s ‘hinterland’? What interests does she have in life other than the acquisition and exercise of political power? What are we to make of her much-vaunted educational reform campaign in Arkansas, productive of many speaking opportunities but few tangible achievements? What of her tenure as Chairperson of the federal Legal Services Corporation, which thought that political contributions to state referendum campaigns was a suitable use of federal funds? What of the over-enthusiasm for the criminalization of politics attributed to her during her stint as a Watergate special prosecutor, or the investigations of the New York police department threatened while Giuliani was a Senate candidate, which disappeared when he withdrew? What of the health care task force, with its anti-democratic premise that ‘complexity is our ally’ and its fiscal projections, deflated by the Congressional Budget Office, asserting that the improvements could be fully financed by ‘savings’ and an increase in the cigarette tax? This was not the style of David Lloyd-George who declared, in presenting the National Insurance Act of 1911 to the House of Commons "it will cost money, and it will be worth it!". Nor was its substance respectful of professional values, stampeding once-independent physicians into ‘managed care’ groups. Mrs. Clinton says she has learned from this experience. And what has she learned? To do more for the insurance companies! That the system is complex, that the country is diverse, that its civil service is not up to French or British standards, and that reforms require local governance and market signals–this we have not heard from Mrs. Clinton. The United States cannot be a Greater Sweden. Mrs. Clinton’s memoirs, unlike those of her husband, reflect no intellectual curiosity, quest, or pilgrimage. What does she read, what has she read, what impact has it had? This we do not know. As for methodology, we do know some things, and they are not encouraging. Does her presentation of an award to Anita Hill, for her ‘courage’ in being dragged forward by congressional staff to make ten-year-old allegations that were both unprovable and irrelevant presage further use of sexual defamation as a political weapon, or have lessons been learned from the Lewinsky saga? Will dissenters within her party be denied speaking rights, like the elected Governors of Pennsylvania and Kansas in 1992? Will there again be a clean sweep of U.S. Attorneys, invoked by the Bush administration to justify its purge of ‘difficult’ U.S. Attorneys, or has something been learned from this experience also? Mrs. Clinton professes to believe that the first action was legitimate, the second not. But it was Mr. Churchill who advanced as one of the tests by which freedom might be known in the modern world "Are the courts of justice free from all association with political parties?" What of her promise of universal federally-funded preschool? What does that say to parents who want to stay home, at least part-time, during ‘the magic years’ when their children are very young? "Parents", Bertrand Russell once said, "are apt to be fond of their children and do not want them to be fodder for political schemes. The state cannot be expected to have the same attitude." What of the $5,000 child bond she has proposed? Why is this use of funds deemed more prudent than a comparable investment in science education in high schools? Or is the virtue of this scheme that it does not make trouble for the teacher’s union, however inconsistent it may be with the notions of earned entitlement that have informed most successful American social legislation: the Homestead Act, the Social Security Act, the G.I.Bill, the Welfare Reform law (which Mrs. Clinton opposed and which her husband twice vetoed)? What of "Hillaryland", a staff rivaled in its secretiveness only by that of the Vice President? Have any of its denizens drafted a successful statute or administered a successful program, or are they all obsessed with electoral mechanics, and only electoral mechanics? Are pollsters and political consultants likely again to participate on equal terms with the Secretary of the Treasury in meetings to determine domestic policy? Are we to have another ‘affirmative action’ domestic cabinet, whose members spend inordinate amounts of time dodging indictments, seeking pardons, or enjoying expense accounts, or will our problems of transportation infrastructure, secondary education, and mismanagement of public lands be effectively dealt with? Is the moral authority of the administration likely to be squandered by early and obvious payoffs to interest groups? What does Mrs. Clinton believe about the budget deficit, about social security, about medicare? She has declined to say. She appears to be against raising the retirement age in a rapidly aging society, against private accounts, and against benefit reductions. The remaining options are not pretty ones: increased wage bases, which erode political support for social security and fall heavily on small businessmen, increases in already high and regressive payroll tax rates, or the vigourous operation of the printing press. Where does Mrs. Clinton stand, or is she to be given a free pass? Finally, there are the questions of separation and division of powers. With respect to both Iraq and Iran, Mrs. Clinton has voted to aggrandize presidential power. Her defense of the writ of habeas corpus, and her opposition to the confirmation of Alberto Gonzales, were scarcely robust. In her memoirs, she refers to the posse commitatus act as something in the nature of an obscure nuisance. Her husband greatly expanded federal criminal jurisdiction; she has been an enthusiastic supporter of the ‘hate crimes’ bill. What, in her view, are the limits on federal executive and prosecutorial power, or are there any? Has there not been essential continuity between the Justice Department of Reno and that of Ashcroft and Gonzales; between the thinking that led to the Kosovo War and the first bombing of a European capital since 1945 and that which led to the Iraq War? Is she pleased by the present state of Kosovo, or does she, like the press, avert her eyes? How can a President lead, without disclosing her views and purposes? Elections are where mandates are obtained. And what reason is there to think that accountability and constitutional government can survive a President who has never held a proper press conference? It is not too soon to seek answers to these questions. George Liebmann, a Baltimore lawyer, is the author of The Common Law Tradition: A Collective Portrait of Five Legal Scholars (Transaction Books, 2005). -------------------------------------------------------------------------------- © 2007 American Conservative Union Foundation 1007 Cameron Street, Alexandria, VA 22314 Tel: 703.836.8602

 
 
 

A new schools chief has come to Baltimore. Andres Alonso's arrival coincides with the last stages of negotiation of a multiyear teachers union contract, which will effectively tie his hands if its provisions are unwise.

There is much in the current contract that was carelessly accepted, and much that needs revision. Political realities preclude drastic revisions, but there are steps in the right direction that should be taken.

The two drivers of the system's recurrent fiscal crises are teachers' automatic step salary increases, up to the 21st year of service, and their "Cadillac" health insurance plan. The panel under the chairmanship of former Baltimore County Circuit Judge Barbara Kerr Howe that investigated the last fiscal crisis determined that these items increase personnel costs by 8 percent per year, while the district normally sees about a 2 percent increase in tax revenues. The difference creates a structural deficit of $42 million per year.

The system cuts off seniority increments at the 10th year for teachers without master's degrees; it should ultimately do the same for all teachers. A start should be made by lowering, perhaps to 18, the years of step increases, and/or lowering them to 10 for new entrants into the system.

The health plan contains a $150 individual and $400 family annual deductible with no co-pays for most in-network services, and co-pays of only $10 for branded drugs, well below those in Medicare Part D. Middle-class professionals should be expected to budget for routine health care.

In addition to exorbitant health care costs and wage increases, the contract provides the most liberal provisions for cash conversion of sick leave of any school district in Maryland.

Fiscal profligacy, however, is far from the only problem with the current contract. Consider the following provisions:

• A five-step grievance system subordinating the superintendent and the board to a third-party arbitrator. This renders teachers virtually impossible to remove.

• A seven-hour, five-minute school day with a 45-minute lunch period. Nearly all counties have a seven-hour, 30-minute school day with a 30-minute lunch period.

• Priority in requested transfers between schools is granted on the basis of seniority. The effect of this is that highly paid, experienced teachers gravitate to the "least difficult" schools. A study in Baltimore County showed a disparity in per pupil spending between schools of as much as 2-to-1 because of this phenomenon. The state has spent billions providing equal school spending between school districts, only to have its objective undone within districts by the seniority provisions of union contracts.

• The only contract variation allowing extra pay to math, science or special-education teachers is limited to $500 per year for three years. By contrast, Talbot County allows 10 years of extra seniority increments where necessary to attract teachers in scarce disciplines.

Another deficiency of the contract is that the only way teachers may advance on the basis of good work is by becoming department heads, in which case they are required to partially leave the classroom; by being designated "master teachers," entitling them to an extra $4,000 per year but requiring that they "not be assigned regular full-time classroom duties"; or by being certified by a union-controlled national board whose certificates have little correlation with classroom competence, which brings an additional $4,000.

It is also stipulated that "enterprise schools" - presumably including charter schools - are allowed to make operational decisions "in accordance with labor agreements," a vague provision that does far more than properly guarantee salaries and benefits.

Numerous provisions in the contract discriminate against teachers whose seniority has been gained in other public school systems; others transgress on curriculum and textbook issues reserved to management by state law. While state law wisely provides that troubled schools be provided with community boards known as school improvement teams - a provision that could usefully be extended to all high schools - the current contract seeks to vitiate this provision by packing the teams with teachers at the expense of the dreaded "outsiders."

Mr. Alonso has his work cut out for him. He needs more help than the school board's negotiating committee has given to his predecessors.

 

 
 
 

Nationalizing Crime
by George W. Liebmann

The endorsement by the Washington Post and too many ‘liberals’ of the proposed ‘hate crimes’ bill exists in strange juxtaposition with recent articles and editorials on the U.S.Attorneys scandal revealing the abuse and over-centralization of the existing system of federal law enforcement. The significance of the proposed bill is not found in the ludicrous ‘log-rolling’ leading to the inclusion of women and the disabled as well as ‘gays’ as new categories of protected persons, but rather in its dilution of constitutionally mandated requirements of criminal intent, which would potentially ‘federalize,’ or rather nationalize, almost all crimes of violence and associated words .

The dangers of this sort of vagueness are why the Supreme Court in 1812 refused to allow federal courts to define ‘common law crimes’ since the ensuing body of law would be "much more extended" and "in its nature very indefinite." "Behind the decision", according to one historian, was:

the concern that nonstatutory crimes would not be defined with sufficient particularity and could be made instruments of political repression...In retrospect it is obvious that the common law of crimes was a potent political weapon wielded by the party in power against its opposition...political leaders could and did use the doctrine of common law crime to stifle the opposition press and perpetuate themselves in office.

Both the Roosevelt court in Screws v. United States and the Warren Court in United States v. Guest stated that the federal criminal civil rights laws would be unconstitutionally vague unless circumscribed by specific intent to deprive a victim of a federal constitutional right. Without this, Justice Douglas said in Screws, the law " lacks the basic specificity necessary for criminal statutes under our system of government " Justices Frankfurter, Jackson and Roberts further cautioned that even as limited, the statute has dangers:"a ‘policy of strict self-limitation’ is not accompanied by assurance of permanent tenure and immortality of those who
make it the policy. Evil men are rarely given power; they take it over from better men to whom it had been entrusted. There can be no doubt that this shapeless and all-embracing statute can serve as a dangerous instrument of political intimidation and coercion in the hands of those so inclined."

This supplies sufficient answer to the weasel words in the hate crimes bill about consultation with states. The obvious dangers to free speech which gave rise to Jefferson’s successful opposition to federal common law crimes are also present in the ‘hate crimes’ bill, and are revealingly sought to be avoided by statutory exceptions which must be invoked and proven by defendants. Prosecutions under the bill would thus involve a witches’ brew of controversial questions.

This “hate crimes” bill should be held up to law students as a model of bad draftsmanship, and any presidential candidate of either party voting for it should be deemed disqualified thereby.

George Liebmann, a Baltimore lawyer, is the volunteer Executive Director of the Calvert Institute for Policy Research and the author of The Common Law Tradition: A Collective Portrait of Five Legal Scholars (Transaction Books, 2005).


© 2007 American Conservative Union Foundation 1007 Cameron Street, Alexandria, VA 22314 Tel: 703.836.8602

 

 

 
 
 
 
The Calvert Institute announces publication of The Trimmer's Almanac: Ten Years of the Calvert Institute, 1996-2006, available for $30 including postage (five or more copies, $15 each including postage). The Table of Contents of this handsomely bound 660 page volume appears below:
 

Table of Contents

Table of Contents i

Preface v

I. Criminal Justice

 1Charles E. Moylan, Jr., J. Frederick Motz, John Glynn,Timothy Doory, Elizabeth Julian, Page Croyder andPeter Saar; The Baltimore Criminal Justice System:The Judges Speak 1

George Liebmann, Three Brief Comments: Gun Control,Citation Authority, Tenure of Police Commissioners 34

Robert M. McCarthy, Action Plan on Juvenile Crime 41

II. ‘Court Watching’ 49

George Liebmann, The Folly of Consent 49

Kalman Hettleman and George Liebmann;Special Education 60

George Liebmann, A Three Ring Circus 64

George Liebmann, Civil Gideon: An IdeaWhose Time Has Passed 76

III. Drug Policy 81

Alan Friedman, Gary Johnson, Donald Santarelli, Jerome Jaffe, and Robert DuPont; The War on Drugs:A Reconsideration After 40 Years 81

George Liebmann, Testing for Drugs in Schools,The Constitutional Issues 111

Douglas Munro, Why Maryland Should ScreenWelfare Applicants For Drug Use 120

IV. Education 127

Denis Doyle, David DeShryver and Douglas Munro;Reforming the Schools to Save the City 127

George Liebmann, The Agreement: How Federal,Estate and Union Regulations are Destroying PublicEducation in Maryland 192

Donald Langenburg, Peter Martin, and John Toll;High School Science and Mathematics in Maryland 231

Jeffrey Flake, Much Ado About Nothing: Fuss AboutCertification Protects Closed Shop 254

C. Steven Wallis, Civility: Key to Genuine School Reform 257

Douglas Munro, Public v. Private Schools:A Reality Check 267

Robert Lerner and Althea Nagai; Multi-culturism andthe Demise of the Liberal Arts at Maryland’s PublicColleges and Universities, Except Morgan State 271

V. Devolution and Management 307

William Eggers, Timothy Burke, Adrian Moore,Richard Tradewell, and Douglas Munro; Cutting Costs:A Compendium of Competitive Know-How and Privatization Source Materials 307

George Liebmann, A Contrast to Regionalism:Reversing Baltimore’s Decline through NeighborhoodEnterprise and Municipal Discipline 389

Donald Stabile, Wayne Hyatt, Linda Schuett, MarcPorter Magee, Leta Mach, Charles Duff, Jr.;Creating Community in Planned Communities 489

Peter Samuel, C. Kenneth Orski, Kenneth Reid andRonald Utt; Market Approaches to Congestion Control 528

William Ratchford, Nancy Kopp, Robert Neall, James Brady, Donald Devine and Nina Owcharenko; TheMaryland Budget: The Experts Speak 564

George Liebmann, The Baltimore City Retirement System: Heading for Trouble 620

The Calvert Ethos 629

Douglas Munro, An Albanian Sojourn: A StafferRecalls an Unusual Odyssey 629

Christopher West, Partisan Politicking and theMaryland Judiciary 640

Ronald Dworkin, A Conservative Robespierre:A Review of Bork’s Gomorrah 643

Ronald Dworkin, Too Easy and Too Free: A Review of Murray’s Libertarianism 648

George Liebmann, Two Essays on Terrorism 653

 

 

 

 

 

 

 

 

 

 

 

 

 


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Commentary
George Liebmann: There is another way to settle ‘eminent domain’ debate
WASHINGTON - The recent election has seen states adopt constitutional amendments reversing the recent Kelo decision allowing New London, Conn., to condemn private homes for purposes of development.

That decision was applauded by city officials, and was decried by many conservatives, including some seeking to ban all redistributive government activity. A dialogue of the deaf, similar to that in the abortion and “gay rights” controversies, is under way: A judicial decision ignites extravagant political responses; arguments are cast as absolutes, and underlying problems are not rationally discussed.

Certainly, cities have not benefitted from “the federal bulldozer.” The condemnation of owner-occupied homes so that land can be handed over to developers is wrong. But it is a fact that inner cities do not spontaneously regenerate.

Because of the splintering of lots and the complication of titles, private land assembly is a difficult process; developers are held to ransom by “hold-outs”; and the line of least resistance is to develop on greenfields elsewhere.

Improving single properties is difficult; vandalism renders it infeasible. Although there is re-gentrification in historic neighborhoods and around harbors, decay is the rule, renewal the exception. Those urging that rights of property and “law and order” are all that is necessary to renewal overlook formidable transaction costs.

Several foreign countries have found a method of renewal that utilizes private developers and that minimizes, though it does not completely eliminate, governmental coercion. The technique is known as “land readjustment” and supplies the basis of re-development in the war-damaged cities of Japan, Korea and Taiwan, and in Kiel, Germany, and Rotterdam, Netherlands.

Under it, a percentage of owners in a city block petition a city council or court for creation of a readjustment district. Unlike the situation with government takings, any owner-occupier can exclude his property. If creation of the district is found reasonable, the properties within it are appraised.

Any owner not wishing to remain in the scheme has the right to be bought out at an appraised value, as in eminent domain. The remaining owners frame a redevelopment plan, give shares in it to a developer, and on completion, receive either their improved property and/or shares in a corporate owner.

The method relieves both developers and municipalities of land acquisition costs, and gives owners, in inner cities typically landlords, absentee investors, or municipalities, an incentive to cooperate.

Although a number of American academics have sought to foster the technique, it has never caught fire here, although there is no reason save unfamiliarity, why it should not. Similar devices have been used to consolidate land parcels in cemeteries and failed recreational developments.

Provided that compensation of dissenters is immediate, there are no constitutional obstacles. When the defenders and foes of Kelo are through screaming at each other and celebrating their victories and mourning their election defeats, they might usefully turn their attention to this moderate and hopeful device.

George Liebmann, a Baltimore lawyer, is the author of “Neighborhood Futures: Citizen Rights and Local Control” from Transaction Books, 2004.

Examiner

George Liebmann: Ask Gubernatorial Candidates About Schools and Education

George Liebmann
2006-10-18
The Examiner

BALTIMORE - Voters must ask the two main candidates for governor these three questions about schools before they vote for either one:

Do you favor:



  1. Opening up teaching to people not trained in education schools?

  2. Pay structures resembling private labor markets, where schools compete?

  3. Building-level management of schools?


Why are these reforms needed? Schools are as good as the teachers in them. Teacher quality will not improve until barriers to entry are removed, competitively determined pay is provided, and management autonomy is restored. Here is an overview of where Baltimore Mayor Martin O’Malley, a Democrat, and Gov. Robert Ehrlich, a Republican, stand.



Opening up the teaching force



Ehrlich: Ehrlich has supported charter schools, which in most states don’t require many education course credits of their teachers. But State School Superintendent Nancy Grasmick has not made it easier for liberal arts graduates, scientists and retirees to teach. A state legislator withdrew a bill reducing required education courses at her request. A new law allows 100 science teachers annually to participate in an alternative certification program. Since the state hires several thousand teachers, this represents pitiful progress.



O’Malley: Many teachers with alternative certification work in the city schools, thanks to the Abell Foundation. O’Malley seeks large salaries for a limited group of school principals. Since principals must complete two years of education courses, this creates an added incentive to take education rather than subject-matter courses. The mayor preserved the Baltimore City union contract, which contains a provision denying teachers from the counties seniority credit for prior service.



Reforming pay structures



O’Malley: The only incentive the Baltimore City contract provides to teachers in scarce disciplines, like math and science, is a signing bonus of $1,500 spread over three years. The master teacher provisions provide rewards in the $3,000 area.



Ehrlich: The governor’s Steele Commission proposed merit pay and extra pay for scarce disciplines. Grasmick’s version of merit pay makes such pay dependent on test results, rather than on local judgment of principals and peers. This “control freakery’’ undermines the concept. Student performance depends not only on teacher skill but on parental interest and discipline maintained by principals. Besides, students would have no incentive to take seriously tests without personal consequences.



Building-level governance



O’Malley: In Baltimore City, union contracts leave even skilled principals with little authority. Senior teachers can readily move to schools of their choice; this prevents principals from building a team. A five-step grievance procedure makes it almost impossible to discipline bad teachers. The mayor deserves credit for seeking community aid for building repairs. But these efforts have not been institutionalized, even though state law allows boards to appoint advisory committees for each school. Even Baltimore’s magnet high schools lack such committees, leaving them at the mercy of the bureaucracy, which recently tried to dilute admission standards.

Ehrlich: The governor’s record rests entirely on support for charter schools, which enroll less than 1 percent of students.



So who is better?



Neither candidate’s agenda will do much, though Ehrlich’s offers more hope, particularly in its proposals for liberalized certification, some form of merit pay and extra pay for teachers in scarce disciplines. And he is more independent of the vested interests in unions and education schools.



George Liebmann is the volunteer executive director of the Calvert Institute for Policy Research Inc.



Review of George Liebmann’s The Common Law Tradition:

 A Collective Portrait of Five Legal Scholars

By Bradford A. Berenson (from Engage: The Journal of the Federalist Society Practice Groups, May 2006))

 

What is the role and relevance of legal academia in the larger society?  Do law professors matter?  If so, why and in what context?  What attitudes and habits of mind are most conducive to excellence in law teaching?  How have law schools and those who make their careers in them changed over the past four decades?

Anyone interested in these questions will find abundant food for thought in George Liebmann’s new book, The Common Law Tradition:  A Collective Portrait of Five Legal Scholars.

At the center of the book are biographical and bibliographical surveys of five law professors from the University of Chicago in the 1960s:  its Dean, Edward H. Levi; Harry Kalven, Jr., who collaborated with sociologists on empirical studies of the American jury in the Chicago Jury Project; legendary contracts scholar and father of the Uniform Commercial Code Karl Llewellyn; constitutional law professor Philip Kurland; and the original serious student of the theory and practice of administrative law, Kenneth Culp Davis.  Liebmann was a student at Chicago during the time these five men taught, and he appears to have been personally acquainted with all of them.  His portraits are therefore admiringly rendered, salted with enough anecdote and personal reflection to keep the reader’s attention.

The chapters devoted to the individual portraits of these legal scholars canvass their lives and work.  At times they devolve into fairly dry recitations of the career achievements of their subjects and summaries of their major works and the reactions of other scholars to those works.  But at their best, these chapters bring their subjects to life and allow the reader to understand not only what these men did with their lives, but why, and why it mattered.

The chapter devoted to perhaps the most interesting of these figures, Ed Levi, discusses not only his academic work on antitrust law and legal process but also his tenure as Dean of the Law School, as Provost and then President of the University of Chicago during the politically and racially turbulent times of the 1960s, and his work in government in the Antitrust Division of the Justice Department and then later as its Attorney General.  We learn that although Levi was both a founder of the law and economics movement and a legal realist, his career was devoted, in a sense, to an ideology of being non-ideological.  As Liebmann describes it, Levi was a consummate institutionalist and process-oriented conservative.  He led an effort to assimilate the teachings of social science into law and favored a jurisprudence of restraint, according courts less latitude in interpreting statutes and more in areas where the common law reigned, but always demanding gradualism and practical accommodation to the needs of the democratic process.  In the constitutional arena, “[h]is concerns centered less on individual rights than on the structure of divided and separated government that protected them.”

In the 1950s and 1960s, Levi became involved in a number of controversial episodes as a university administrator, and in each, he displayed the mature professional and practical judgment that characterize the best lawyers.  In 1951, a star Chicago law student, George Anastaplo, precipitated what eventually became a 5-4 decision in the Supreme Court by refusing on principle to respond to questions concerning affiliation with the Communist Party on his Illinois State Bar application.  Levi attempted to dissuade Anastaplo from taking this position, correctly as it turned out:  Anastaplo lost his case.  In another incident involving the taping of jury deliberations by the Chicago Jury Project, Levi took responsibility for the taping (which had court approval) in the subsequent congressional investigation, helping to defuse the crisis.  And when racial politics reared its head on campus in the late 1960s – in the form of demands by black radicals for quasi-separatist preferences in admissions, curriculum, housing, and faculty appointments, backed up by sit-ins and boycotts of various kinds – Levi steadfastly refused to compromise and yet managed to avoid further provoking the demonstrators or inflaming the situation.  Avoiding mistakes made by other university administrators, he neither used force nor offered amnesty or concessions; he allowed the passions of the agitators to exhaust themselves and then used university disciplinary processes to mete out consequences.  Levi explained that:

The university must stand for reason and for persuasion by reasoning . . .  It is most unfortunate and in the long run disastrous for a university to exemplify expediency which avoids or solves conflicts by the acceptance of ideas imposed by force . . .  This approach requires candor, consistency and openness, but also effective discipline.  The discipline will be difficult.  But the university owes this much to itself, and it also owes this much to the larger society.

Although not unsympathetic to the goals of the civil rights movement, Levi clearly hoped that the legal system could serve as a muffler or cooling pond of sorts that would help sublimate the passions of the civil rights movement into constructive, responsible, incremental change.  As Liebmann explains, “he defined the function of the bar not in the manner of the rights-centered legal activist generation that followed but more modestly, as ‘a coordinating influence, a strategic intermediary between the people, between the government and the individual, between ideas and their application.’”  Levi also valued intellectual diversity on campus and declined invitations to pursue other sorts through, for example, racial preferences: “Once you determine quality by race or creed, there will be a leveling in this country.  Then only universities outside this country will have intellectual excellence.”

As Attorney General, Levi was involved in numerous issues with contemporary resonance.  He responded to allegations of abuse of law enforcement, intelligence, and investigative resources during the Nixon years; adopted many of the internal Justice Department guidelines that still govern certain activities of federal law enforcement agencies; helped initiate the process of sentencing reform that culminated years later in the Sentencing Guidelines; managed controversies over school busing; and grappled with issues relating to special prosecutors and what became independent counsels (he believed the Independent Counsel Act unconstitutional).  Although many of these issues and controversies could benefit from more in-depth and multi-dimensional treatment than Liebmann affords them, even a cursory description impresses the reader with the variety and significance of the issues Levi confronted.

Of special interest given President Bush’s two recent Supreme Court appointments, Liebmann suggests that Levi was instrumental in securing the appointment to the Supreme Court of John Paul Stevens, with whom he had taught a course in antitrust law.  When Justice Douglas resigned, Levi counseled President Ford that it would be unwise to choose a nominee from within his administration, expressly taking himself out of the running.  He then evaluated a number of leading candidates, and in internal administration deliberations apparently tipped subtly in favor of Stevens, praising his “discipline and self-restraint.”  Years later, however, Levi also steadfastly supported the failed confirmation of Robert Bork, whom he had been responsible for hiring as Solicitor General.  The superficial paradox appears to be explained by the fact that Levi valued quality and intellect above ideology and displayed a laudable, but from today’s perspective old-fashioned, loyalty to persons he esteemed, regardless of the partisan politics of the moment.

The other four professors surveyed in The Common Law Tradition covered less ground in their careers, but their work and attitudes shared much in common with Levi’s.  The profile of Harry Kalven, perhaps the weakest of the five, emphasizes the broad range of his academic interests:  in addition to being a celebrated torts professor, Kalven wrote influential works on income taxation, automobile insurance, juries and jury reform, and the First Amendment, the latter of which receives extended treatment from Liebmann.   Kalven devoted a substantial part of his professional energy to the Chicago Jury Project, an extensive empirical study of the functioning of civil and criminal juries whose wealth of data is credited in part with sustaining support for the jury system.  Such work reflected what Liebmann describes as the central animating principle of Kalven’s thought:  a concern “with values and doctrine, but doctrine conditioned by immersion in fact.”

Karl Llewellyn comes across in Liebmann’s account as a more colorful character.  An expatriate American who joined the German army in World War I and earned the Iron Cross before the U.S. entered the war, Llewellyn was an idiosyncratic master stylist, part poet and part legal technician, who passionately advocated the serious study of legislation and then put his principles into practice as the father of the Uniform Commercial Code.  From his continental experiences, he also urged the study of comparative law.  He inspired first-year law students with rousing words about their chosen profession:  the law “is one part of wisdom:  trade, culture, and profession in one . . . a pitiful, brave flame.  Some warmth, some light, some touch of burning courage.  What have you more to ask – or to ask to be?”  He also participated actively in the affairs of the real world, advocating strongly, for example, on behalf of Sacco and Vanzetti (whom the light of history has now shown, along with other causes celebres of the American Left, to be guilty of the offenses for which they were executed).

Llewellyn shared the deep faith of the other subjects of Liebmann’s book in the common law process and in the values of judicial restraint.  As Llewellyn himself described it, he “put [his] faith, rather, as to substance, in a means; in that ongoing process of effort to come closer to the Good, that ongoing process of check-up and correction, which is the very life of case law.”  As Liebmann notes, “Law, for him, was not a method by which the enlightened imposed their views on society. . . .  Courts as well as legislature were under a duty to be democratic in their approach and to enforce society’s preferences, not their own.”  Thus, Liebmann concludes, somewhat sardonically, that “[h]is philosophy is one of bottom-up jurisprudence, of respect for private ordering, and of government by consent of the governed.  Hence its current lack of appeal.”

Phillip Kurland began his career in the Department of Justice and in private practice, but within several years of graduation from law school had found his way back as a law teacher.  His career as a professor was marked by a passionate interest in the Supreme Court and its jurisprudence – Kurland was the founder and editor of The Supreme Court Review, a publication dedicated to responsible analysis and criticism of the Supreme Court – and in matters of religious freedom.  Indeed, his crowning achievement was the publication of the The Founder’s Constitution, a collection of source materials for constitutional interpretation grouped by the section of the Constitution to which they pertained.  But Kurland was no originalist.  Rather, “[h]e believed in the relevance of history, not as a literal guide for the present, but as a means of exposing the interests at stake, and for its assistance in elevating discourse from the immediate to the general.  He believed also in the common law, case-by-case method, and in the assimilation of the past that the method required.”  As Liebmann remarks, “This made him a conservative in the Burkean sense, quite a different thing from the legal conservatism now fashionable.”

Kurland’s process-oriented conservatism and Frankfurter-style judicial restraint caused him to be a trenchant critic of the Warren Court.  He felt that the Court was engaged in an arrogant jurisprudence by fiat, heedless of the soft but vital constraints of persuasive reasoning and respect for precedent.  Yet in 1987 he testified against Robert Bork, primarily because he objected to Bork’s recourse to an overarching philosophy of originalism.  Despite Kurland’s belief in judicial restraint, his highest belief was in a style of restrained and modest legal reasoning that abjured grand theories or all-purpose approaches to interpretive questions.  Liebmann tells us that “[h]e deplored ‘the widespread development of legal theory to determine rules of law,’ favoring instead ‘a system of induction from examples to rules.’”  Kurland pledged fealty to “the liberal tradition,” which he described as “a tradition born in doubt rather than faith and maintained by skepticism rather than belief.”

Finally, Kenneth Culp Davis, the great treatise-writer on administrative law, is portrayed as bulldog in the classroom and one of the original scholars tasked with coming to grips with the vast administrative state wrought by the New Deal.  Serving while a junior professor as a staff attorney on the Attorney General’s Committee on Administrative Procedure, Davis began the empirical study of administrative process for which he would long be known.  Davis placed his faith in procedural restraints and guarantees of regularity in the exercise of governmental power that, by the end of his life, he found wanting in judicial process, especially at the Supreme Court level.  Davis felt that “[t]he two best procedures clearly are Congressional procedure and rulemaking procedure.”  He felt adjudicative processes, whether in courts or in agencies, were inferior “because of the typical absence of factual studies even when needed and because nonparties who may be importantly affected are typically denied notice and opportunity to submit written materials.”  He remarked that “[t]he astonishing but undeniable fact is that the Supreme Court in its own lawmaking commonly violates the standard that courts of appeals unanimously require from agency lawmaking . . . forbidding an agency to depart from a precedent without acknowledging it is doing so and explaining why.”  Davis’s lodestars were transparency, procedural fairness and regularity, and fact-based decisionmaking.  His celebration of “practical men” could well serve as a fitting coda to Liebmann’s survey not only of Davis’s life but also of the other four Chicago professors covered in Liebmann’s book:

Practical men never work out detailed values in advance; they keep their ‘system of values’ vague and flexible, and then they make value choices in concrete contexts. . . . decisionmakers have a better sense for values when they can draw significantly from immediate facts and circumstances than when they try to think about values in the abstract . . . rational decisionmaking usually includes the further development of values.  Practical men do not artificially separate values from the compounds in which they come, and I am not convinced they should usually try to.

Although the chapters dedicated to Levi, Kalven, Llewellyn, Kurland, and Davis form the physical heart of the book, much of its soul resides in the Introduction and the Conclusion.  This is where Liebmann synthesizes the larger lessons of these mens’ lives and explores themes that run through their careers which cast into relief the current state of the legal academy, clearly a subject of central concern to Liebmann.

In part Liebmann’s book is a paean to a traditional and process-oriented form of judicial restraint.  He explains that one of the important themes that unites all of his subjects is that “[t]hey were convinced that the law served best when it served its own values, and that predictability, incremental change, conformity to community needs and customs, and respect for ascertainable legislative will were high among these.”  Indeed, The Common Law Tradition serves as a timely reminder that responsible voices from the legal academy, including on the Left, were dismayed by Warren court activism and warned of the threat to judicial legitimacy it posed.  The five professors profiled by Liebmann all criticized on principled, legal process grounds major decisions of that era, including in sensitive areas such as desegregation.  All five indeed were openly critical of the reasoning of Brown v. Board.  In the result-focused climate of legal discourse evident today in the recent confirmation hearings of Judge Alito, many actors in the political process (and in the academy as well) would do well to recall that one might level good-faith criticism at cases whose outcomes one considers desirable.  Liebmann’s scholars remind us that legal reasoning is not, and should not be, simply a tool by which a judge arrives at his preferred result; it is a method that, when practiced properly, has an integrity all its own.

Liebmann’s book also invites the reader to reconsider the importance of statutes, administrative processes, local government, and empirical research in the world of law and legal scholarship.  These were all areas of major professional interest to the scholars profiled.  Liebmann comments that the country’s major law reviews are filled with articles that would not “be of the slightest use to practitioners” and that “none contain fully worked out proposals for statutory reform.  Legislation remains a subject untaught in our law schools; state and local government remain stepchildren of our curriculum.”  He notes that from the New Deal era forward, many of the most significant legislative reforms – which in most meaningful respects have a greater power to transform society and solve its problems than do judicial decisions – were originated and given life, at least in substantial part, by legal academics, whereas the most significant legislation of the modern era (welfare reform comes to mind) have been reflexively opposed by most of the professoriate. 

But at its core, The Common Law Tradition is a reminder of the relevance – or at least the potential relevance – of the legal academy.  It is clearly written from the perspective of an individual who believes that legal thinkers can and should matter, and that their contributions to society ought to consist of more than theoretical law review articles read only by their colleagues.  The book is full of distilled insights into the legal academy and its relationship to the legal profession and society as a whole.  In essence, Liebmann offers the University of Chicago Law School of the 1960s as a yardstick by which to measure the evolution and change, largely for the worse, of the legal academy in the ensuing decades.

Liebmann contrasts the practical, real-world impact of the scholarship of his subjects with the airy theorizing of today’s elite professors.  Whether building support for the jury system, designing a new architecture for commercial law, or writing foundational treatises, the Chicago professors profiled by Liebmann were applying their legal minds to tasks that would have an impact on how law was practiced in the private sector or in government, the two primary arenas in which law and the daily life of the nation intersect.  He believes that, as a result, “their influence on the larger society was more considerable than any comparable group of today’s highly politicized law professors.”  Liebmann quotes Anthony Kronman of Yale commenting on the “powerful . . . disdain for practical wisdom” that characterizes today’s law professoriate and Judge Harry Edwards criticizing “today’s legal academics, whose adventures in cloud-cuckoo land are of no interest to the bar.”  Liebmann contrasts this attitude with that of his subjects, all of whom “were vehement in their rejection of the relevance of high theory to the work of lawyers.”

Indeed, in reading Liebmann’s profiles, it is striking to note how many legal academics played leading roles in government during that era.  In addition to the five scholars profiled, the pages of The Common Law Tradition are peopled by individuals such as Nicholas Katzenbach, Thurman Arnold, Bernard Meltzer, Robert Bork, William O. Douglas, Paul Bator, and Rex Lee, all legal academics whose knowledge and insights found practical outlet and application in significant government service.  By contrast, even a quick survey of the individuals commanding the heights of legal policy in the government today reveals, with certain exceptions, a striking absence of talent from the academy.  The Attorneys General, Assistant Attorneys General, White House Counsels, Solicitors General, and other major legal policymakers of today – think, for example, of Alberto Gonzales, Harriet Miers, Ted Olson, Bill Barr, Paul Clement, Boyden Gray, Hew Pate, Tim Flanigan, David Addington, or David Leitch – by and large come from backgrounds in private practice.  The two newest additions to our Supreme Court, John Roberts and Sam Alito, similarly exemplify the trend.  It seems almost impossible to imagine a law professor today duplicating Ed Levi’s feat and becoming Attorney General of the United States.

Whether this is because of some difference in the academy, some difference in law professors themselves, or some difference in government and society at large is difficult to say.  But most top lawyers and legal minds in the 21st century who have any kind of a practical bent are shunning the academy.  And the changes illuminated by Liebmann’s book certainly suggest that is at least in part because the academy shuns them.  As a result, the places where law is studied and the places where law is practiced are increasingly divorced from one another.  Liebmann appears to feel strongly that all of those places are made the poorer for it.

The current intellectual climate at elite law schools may be partly to blame.  Liebmann also uses his portrait of Chicago in the 1960s to indict that climate, which he perceives to be too often doctrinaire, uncivil, and intellectually narrow-minded.  During the era Liebmann writes about, “[t]he outlook was empirical and tolerant, two words rarely used to describe today’s legal academy.  These common values were carried into expression by a group of men (and one woman) who did not think of themselves as part of a cult or faction, and who were not ruled by the herd instinct.”   The passion for diversity among the scholars he profiles was a passion for intellectual diversity; Liebmann comments that “for too many of [their] academic successors, at Chicago and elsewhere, ‘diversity’ is a cloak for a spoils system whose real aim is conformity of opinion and the homogenization of society.”  Liebmann argues that “the atmosphere of pluralism and tolerance,” which fostered reasoned and civil debate, “was the seedbed of th[e] individual creativity” he celebrates in these scholars.  By contrast, the universities of today, “and their outside rivals, ‘think tanks,’ are harsher places, dedicated more to fostering competing orthodoxies.”  Rather than serve as earnest explorers of practical wisdom, “There are today too many law professors who have field marshals’ batons in their knapsacks.” 

There are promising signs that the trend may be turning back toward the ideal celebrated by Liebmann, at least in some places.  Harvard Law School under the Deanship of Elena Kagan, for example, now offers courses in legislation, sponsors the Berkmann Center, which is meaningfully engaged in the cutting edge issues of law and policy raised by information technology, and has recently hired a number of the country’s most dynamic and creative young conservative legal thinkers.  According to The Common Law Tradition, the prescription for restoring America’s greatest law schools to health is clear, and the potential benefits to society great:  Rediscover and celebrate the value of intellectual diversity; make law school campuses a place where respect, civility, and reason reign in the place of partisanship and ideological strife; and above all, remember that law is the applied, not theoretical, physics of American society.

 

 
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