Brian Leiter's Law School Reports

Brian Leiter
University of Chicago Law School

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Sunday, September 21, 2008

The End of American Capitalism, Law Professor Version

A German philosopher of the 19th-century, whose name now escapes me, once observed that in capitalist societies, "The executive of the modern state is but a committee for managing the common affairs of the whole bourgeoisie."   Events over the last week certainly confirm the wisdom of the observation, as the executive branch prepares to bail out the American financial system from collapse, though without, as far as one can tell so far, making any of the bourgeoisie who brought us to this point pay.  Various law professors have had interesting observations on the fiasco.

David Zaring (Legal Studies, Wharton, Penn) weighs in on the legality/constitutionality of the proposed bailout.

My colleague Eric Posner (Chicago) has had a series of posts (you can get to them starting here) noting the dubious legality of the proposed bailouts by the executive, and suggesting that this implicates the same "rule of law" values at issed when people object to the Bush Administration's conduct of the "war on terror."  Of course, the "rule of law" is complex, but Eric glosses it rather unusually as "advanc[ing] public debate and authorization of policy by a representative body for the purpose of addressing events that it is actually aware of."  But enhancing representative democracy is hardly an obvious benefit of the "rule of law," as opposed to securing justice, protecting individual rights and liberty, and ensuring basic fairness.  Think of the classic 'rule of law' virtues--all, including government officials, are subject to the law; likes cases should be treated alike; legal standards must be public and intelligible; laws must be general, rather than aimed at particular individuals.  Publicity implicates representative democracy, though it is the first--the equality of all, including the executive, before the law--that has been most at issue with respect to the so-called 'war on terror.'   Eric is probably right that some of these rule of law concerns are also implicated in the proposed federal bailout of the economic system, though more would need to be said to establish parity with the "war on terror" case (especially if one thinks, as I do, that the "war on terror" [unlike the current fiscal crisis] is a fake:  first, because one can't wage war on a technique; second, because "war" is the wrong rubric under which to subsume what is really an issue for the criminal justice system; and third, because most of what we know has been done in the name of the "war on terror" has had nothing to do with fighting terrorism.  George Soros has the best short statement of these points.)

And yet it's surely right, as Eric notes, that, "We really have no idea whether Paulson and Bernanke are making wise decisions, dumb decisions, or even politically motivated decisions—say, bailing out firms in which political allies have interests and not otherwise, or firms with lots of workers in politically important swing states."  And indeed, several commentators have expressed compelling skepticism about the proposed federal bailout.

Meanwhile, Lawrence Velvel, the Dean of the Massachussetts School of Law, has an admirably direct statement on the current crisis, connecting it to other concurrent developments and issues.

Finally, Dave Hoffman (Temple) offers a somewhat less selective set of links to law professor commentaroy on the bailout, though he found a couple of good items not covered above.

UPDATE:  More thoughts from Jack Balkin (Yale).

ANOTHER:  Even some of the bourgeoisie are embarrassed by the bailout boondoggle.

MEANWHILE Nate Oman (William & Mary) is happy.

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