The Limits of Law by Peter H. Schuck

A mixed bag of interesting, well-thought out essays mingled with articulate but specious arguments in favor of traditional conservative opinions.

The first half of the book, made of the first 8 essays, is the better half. His arguments in these essays about the limits of law are based on evidence, as when he uses the conflicting conclusions reached by medical studies and the legal system in the Benedictin cases in the 80s and 90s to argue that courts are bad places to decide essentially scientific questions.

In the second half of essays, he begins to twist logic and ignore evidence in order to forcefully insist on the positions he’s adopted.

He claims that the states have changed since the Civil Rights Era, and so there’s no need to worry about devolving power from the federal government to them, ignoring the many groups — women, the LGBT community, non-Christians, immigrants — whose rights the states routinely trample on.

He dismisses Proportional Representation to elect legislators as absurd and unworkable, despite its use in the majority of democratic countries around the world.

In one of the last essays, he goes so far as to say that pushing power down from the federal level to the lowest level possible — county or city — is an alloyed good, a goal to be pursued even if the evidence shows that it makes things worse.

Despite the uneven nature of the essays, though, I did learn a few things:

  • In product liability cases, defendants that rely on statistical evidence are more likely to lose in jury trials.
  • Making employers check their employees’ immigration status is an example of private gatekeeping: when the government delegates part of its regulation powers to private individuals.
  • Modern mass tort litigation (in the US) is only a few decades old. It was basically invented in 1969, and continues to be a cobbled together reaction to the fact that a single company can now affect so many lives all at once.

The Rule of Nobody by Philip K Howard

A short book that’s long on emotional arguments. The author seems to believe that merely repeating the phrase “American government is broken” often enough will substitute for producing evidence that over-specification of rules in law has harmed American business or society.

Not that I think our laws are perfect, or aren’t in need of simplification (I’m looking at you, tax code). But I don’t need to read 200 pages of someone repeating that phrase to me, and telling me that other countries do it better. I need specific examples and evidence of how a different approach has saved countries time or money or boosted their GDP or — anything, really, to back up the claim that our government is mired in too much red tape to be effective, and the author’s principles-based laws would solve the problem.

Despite the general lack of facts, I did manage to learn a few things from the book:

  • President Clinton had a line-item veto — granted by Congress via law — for two years, until the Supreme Court ruled that it was unconstitutional.
  • Presidents used to be able to hold back money for programs they felt were wasteful or inefficient, till that power was specifically outlawed by Congress.
  • Iraqis who worked for the US Army after the invasion were supposed to be given special visas to immigrate to the US (because of the death threats they received), but the Immigration Service delayed their processing over rules so long that some died after waiting more than a year

Hobby Lobby Ruling Undermines Pluralism

The Hobby Lobby ruling didn’t make sense to me for several reasons. One thing that really bothered me was the way they asserted they could apply the religious exemption law to the corporation: they started out asserting that corporations are persons, then shifted to saying the rights of persons are protected by protecting the rights of the people employed by corporations, then shifted to saying the shareholders would be burdened by the penalties if they didn’t comply with the healthcare law.

It felt very slippery, and didn’t seem to hang together. Then it dawned on me: what they’re saying is that shareholders should be allowed to practice their religion through the corporation. Which sounds good at first glance, and is certainly not unconstitutional. But I don’t believe it’s a good principle for a liberal society.

Think of a Muslim-held company that decides to force its employees to pray while facing toward Mecca five times a day, or a Rastafarian company that expects employees to smoke ganja. Or worse, a company owned by Jehovah’s Witnesses that refuses to pay for health coverage that includes my kid’s vaccines, or my blood transfusion during an emergency surgery, or my mother’s kidney transplant. According to the logic behind the Hobby Lobby ruling, this would just be the owners practicing their religion through the corporation. Never mind that they would be pushing their religion onto their employees.

I don’t think anyone should have the power to force a religious practice on someone else – not my teachers, not my city council, and certainly not my boss.

I shouldn’t need to worry about my employer’s religion when applying for a job, anymore than they should have to worry about mine. When you enter the public sphere, you check your religious baggage at the door. It may be uncomfortable, you may not like it, but it’s necessary in a multi-ethnic, multi-religious society like ours.

If you don’t check your religion at the door, you can end up with Christian businesses and Muslim businesses and Atheist businesses, everything split along sectarian lines, like in Iraq. That’s not the kind of society I want to have.

In the past, our laws have been used to avoid precisely that kind of sectarian society. When Amish employers sued to be exempt from taking their employees’ Social Security payments out of their wages, they lost, because you can’t exercise your religion through a corporate body. When shop owners in the South sued to be exempt from Fair Hiring laws, they lost, because when you enter the public sphere, you agree to be bound by the laws of that sphere.

By going against that precedent, the Hobby Lobby ruling undermines one of the core principles of our pluralistic society. I can only hope it gets overturned as soon as possible.