Which legal arguments against OSHA's COVID-19 vaccination mandate are most likely to succeed?
James R. Rogers
God’s Law and Order claims that evangelicals are responsibile for the rise and maintenance of the American system of mass incarceration.
When scholars teach that “everything is political,” they can’t really be surprised when the same lens is turned to assess their own work.
Three recent cases challenge the statutory and constitutional bases of legislative delegation to executive branches.
Models can provide a useful picture of what we think is happening in the world, but scientists place too much trust in them.
One might be forgiven for thinking that today’s Republican Party is an American Christian Democratic party in everything but name only.
One judge’s arbitrary legislation is another judge’s legitimate public purpose.
If you listen to Democrats and their cheerleaders in the mainstream media, their leaders are just plain smarter and more caring.
The frenetic pace and consumption-focus of American economic life is not a result of market capitalism, but it may be part of the American character.
Holding up Hayek for abuse allows both right and left postliberals to substitute ideological argument for data and analysis of specific policies.
The Senator's embrace of Catholic teaching offers some promise, but needs more depth.
If Hazony's traditions are just accidents of cultural evolution or history, then we’re back to full blown relativism.
It did not cause the erosion of subsidiarity in American life, but neither is it a remedy for that erosion.
The ironic result of the Federalists' efforts is that the increase in national power could actually increase overall liberty for the country.
Thinking through the logic of the Constitution with public choice theory in mind leads to some counter-intuitive results.
Initial steps down the path of equalitarianism in turn create their own momentum, picking up speed and insisting on ever more conformity.
It is Trump judges who would allow states to do just what the Illinois Senate wants to do in SB0145 as it seeks to prevent Trump’s reelection.
Without Trump in play, the pre-existing party system will snap back into place with issues and coalitions little altered.
The irony is that the problem is actually more mundane than the continuing existence of racial animus, and the fixes aren’t really all that complicated.
Riker and Weingast argue in the Virginia Law Review that social choice theory’s “chaos theorem” augurs for heightened judicial review.
Congress faces an inherent collective action problem relative to the President, one that means legislators underinvest in the institution itself.
What’s important about the gold standard is the discipline it provides to support price stability.
The desperate fear that motivated parents' behavior extends far wider than these elites—it offers a glimpse of the dark side of America’s democratic soul.
It's not 1964 anymore: the media are often the deep-pocketed parties in disputes over defamation rather than government officials or private citizens.
President Trump’s declaration of a national emergency is the check on executive prerogative, not the exercise of it.
If the disappearance of good manufacturing jobs leads to a decrease in blue-collar marriage rates, wouldn't the opposite be true as well?
When conservatives blame markets for illnesses generic to all modern economies, they misdiagnose the cause and therefore prescribe faulty remedies.
Let's conduct a thought experiment: when you blame markets for a bad outcome, ask yourself whether a planned regime would suffer the same results.
One can concede the ills Carlson identifies without conceding that the “free market” caused those ills.
For better or for worse, the increasing political polarization and extremism we see today is no more than a reversion to the American norm.
If anything, Lutheran and Reformed (i.e., “Calvinistic”) churches share the religious universalism of Roman Catholicism.
It’s easy to imagine suburbanites, even large numbers of women, preferring the Trump they know to the socialist they don’t.
Critics love behavioral economics because they think it gives traditional economics the comeuppance it deserves, and this is a mistake.
People frequently assume social and economic liberalization goes hand in hand, but the links aren't as tight as we often assume.
The Declaration’s affirmation of inalienable rights limits individual autonomy, but it does so in the service of liberty.
Electoral accountability of the executive branch is the reason the Constitution vests executive power in an elected president in the first place.
Despite all appearances, the Democratic takeover of the House increases the odds of Trump’s reelection in 2020.
If Americans no longer desire birthright citizenship, then the means to implement that desire is to amend the Constitution.
The Western experience with increasing economic inequality cannot be generalized worldwide.
The end of the 19th century brought a curious political obsession to the forefront of U.S. politics, and The Wizard of Oz was one result.
The inclination to bond with one’s nation-state, and regard it as primary, is a reflection of the absence of real community in America.
There is no crisis of legitimacy for the Supreme Court among the American public as a whole, but liberal elites will tell a different story.
Modern levels of the division and specialization of labor cannot be “solved” without inconceivably huge economic and social dislocations.
Ironically, sometimes too much power hinders one’s ability to achieve what one desires.
Authoritarian rulers need to implement laws as much as non-authoritarians do, and that means judges have more independence than you might think.
Senator Sasse asks: Are there ways for Congress to answer its need for administrative expertise without losing electoral accountability?
It is a good thing a U.S. Senator raised the delegation issue in a high-visibility venue, but it should have a hearing of its own.
The liberty of the agrarian yeoman would not at all resonate with Corey Robin’s desires for socialist freedom.
Footnote 4 of Carolene Products and the "counter-majoritarian difficulty."
We normally think of judicial review of legislation as a zero-sum game, but it has unseen benefits.
Americans should argue with Madison, but we should also take his words seriously when we do so.
The Supreme Court is independent, yes, but Congress has several options for exercising control over the justices.
Is there something peculiar going on in the way Federalist 9 transitions into Federalist 10?
With Justice Kennedy's retirement, the new holder of the balance on the Supreme Court is Chief Justice John Roberts.
Isn't it possible that the rational voter model can be amended to account for civic virtue?
Critics of rational choice theory in general and the rational voter model in particular misunderstand what it implies.
Tangible rewards for offering location incentives are obvious for all local governments, but that doesn't make the practice any less problematic.
By letting the judiciary offer advisory opinions on legislation, we might not just save time but also get better legislation.
It might be helpful that President Trump has switched up how the game is played with North Korea.
While the U.S. Supreme Court has declined to issue advisory rulings, some state courts embrace this power.
Many have the story of Moneyball wrong: it's not a story of systematic error but one of eliminating systematic error in a market.
Tocqueville gives us good reasons to think that constitutional amendment is the best path to avoiding judicial supremacy.
When legislators know that judicial review will save them from hard calls about the laws they vote on, no end of mischief follows.
Is it possible that the courts - one of our most important "auxiliary precautions" - are undermining republican liberty?
Government borrowing creates intergenerational conflicts our system wasn't built to handle, but how do we curb debt?
Conservatism should help us negotiate the tragic tradeoffs of life: a way between market and political liberalism versus solidarity. Tocqueville can help.
Looking closely at voter turnout patterns tells a mixed story about Republicans' chances for victory in the midterms and beyond.
The dormant commerce clause doctrine has allowed the judiciary, by itself, to create and sustain a nation-wide free trade zone in the U.S.
The Preacher in Ecclesiastes says the end of a matter is better than the beginning. Not for Britain in World War II, however.
Jeremy Bentham asserted that an attachment to bicameral government reflected a blind veneration of tradition, but he missed something about America.
There are many roads to liberalism, and not all liberalisms are about the deepest questions.
Trade-offs are inescapable: the separation of powers encourages informational free riders and can make good policies harder to achieve.
Heightened judicial review of economic life can't be justified if the judiciary avoids treating government action the same way.
For the most part, government competition for business is good, but we should consider whether the Amazon HQ2 competition distorts the market.
Our bureaucracy seems to move further and further from legislative accountability, but what explains this?
If globalization becomes a defining issue for different camps of conservatives, it’s difficult to see the continuation of the American conservative coalition.
Increases in divisions of labor have produced material prosperity that would have beggared the minds of the ancients.
Socially, a community can create a better future for itself, as it were, by tying its hands today.
What to do with populations in which we can identify threats ex ante only probabilistically?
We underestimate today the seriousness with which Americans initially took the idea of corporate consent.
James R. Rogers is Associate Professor of Political Science at Texas A&M University and Contributing Editor at Law & Liberty. He holds a J.D. as well as a Ph.D., and teaches and publishes at the intersection of law, politics, and game theory. He has published articles in the American Journal of Political Science, the Journal of Law, Economics, and Organization, Public Choice, and in numerous other journals. He edited and contributed to the book Institutional Games and the Supreme Court, and served as editor of the Journal of Theoretical Politics from 2006 through 2013.