Author Archive | Ilya Somin

Upcoming Talk on Democracy and Political Ignorance at McGill University

On Thursday, January 9, I will be doing a talk about my book Democracy and Political Ignorance: Why Smaller Government is Smarter at McGill University in Montreal. Th lecture is sponsored by McGill’s Research Group on Constitutional Studies, will run from about 4:30 to 6 PM (including time for questions), and will be held in Leacock 232. I may even do a small part of the talk in French!

As co-blogger Eugene Volokh notes, Washington Post columnist George Will recently made the book the subject of his most recent op ed. Here is an excerpt:

It was naughty of Winston Churchill to say, if he really did, that “the best argument against democracy is a five-minute conversation with the average voter.” Nevertheless, many voters’ paucity of information about politics and government, although arguably rational, raises awkward questions about concepts central to democratic theory, including consent, representation, public opinion, electoral mandates and officials’ accountability.

In “Democracy and Political Ignorance: Why Smaller Government is Smarter” (Stanford University Press), Ilya Somin of George Mason University law school argues that an individual’s ignorance of public affairs is rational because the likelihood of his or her vote being decisive in an election is vanishingly small. The small incentives to become informed include reducing one’s susceptibility to deceptions, misinformation and propaganda. And if remaining ignorant is rational individual behavior, it has likely destructive collective outcomes.

I am, of course, very flattered that George Will decided to write a column about the book, especially since I have been reading his work since I was in high school. […]

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The Benefits of State Polarization

Many commentators decry the increasing polarization between “red states” and “blue states.” This recent Washington Post article summarizes some of the standard criticisms. But as my George Mason colleague Michael Greve explains, state polarization also has some valuable benefits:

Polarization (whether measured by single-party control over states, policy outcomes, or whatever) has its downsides. Single-part states may start to work like the House of Commons and “overshoot” in a red or blue direction. At the federal level, a polarized system is bound to produce politicians who aren’t used to compromise…..

On the other hand:… [the] “competitive” kind of federalism requires a certain degree of polarization (or sectionalism). And the price may well be worth paying. Consider a few well-understood but underestimated advantages:

Competitive federalism reveals information. We can debate the abstract advantages of “red” or “blue,” “American” and “European” social models until the cows come home: there’s no substitute for observing the actual effects in real life.

Competitive federalism satisfies preferences. A thoroughly blue or red United States would leave one half of the country very unhappy. That’s not true under federalism—not when preferences are heterogeneous across states and (relatively) homogeneous within states. As, increasingly, now.

Competitive federalism reveals preferences and reduces ignorance. People move across states lines in response to a ton of factors (climate, jobs, housing costs…)—many of which are policy-dependent. “Foot-voting” is a pretty good political feed-back mechanism: sooner or later, (state) politicians will pay attention….

You can’t have those sweet advantages without the bitter; the trick is to minimize the costs. Here, that means national-level solutions that allow the states to go their own way, instead of entangling them in federal schemes.

As Michael notes, I have explained why foot voting often leads to better-informed decisions than ballot-box voting in my recent […]

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Upcoming Heritage Foundation Event on Our Book A Conspiracy Against Obamacare

On January 7, co-bloggers Randy Barnett, Orin Kerr, and I will be speaking at an upcoming event at the Heritage Foundation in Washington, DC on our recently published book A Conspiracy Against Obamacare: The Volokh Conspiracy and the Health Care Case, which details ours and the VC’s role in developing the arguments in the Supreme Court’s Obamacare decision (the book is also coauthored with Jonathan Adler, David Bernstein, and David Kopel). The book’s editor, Trevor Burrus of the Cato Institute, will also speak at Heritage.

The event will be held on from 12 to 1 PM. More information, including how to RSVP is available here.

NOTE: This event has been rescheduled from December 10, when it was wiped out by a “snowstorm” that shut down most of the DC area, despite the fact that there was only about 1 inch of snow. We hope to avoid a repeat on January 7! […]

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Can Ghosts Increase the Value of Your House?

Most students who take a property law class study the famous New York case of Stambovsky v. Ackley, where a New York court ruled that sellers of a house must disclose to potential buyers the fact that the house was reputedly haunted. The court concluded that the house was “haunted as a matter of law” and that the haunting qualifies as a latent defect, because it is a condition that might reduce the value of the house. Courts in some other states have ruled differently, holding that sellers only have a duty to reveal physical, structural, or legal defects, not poltergeists. However, as Josh Blackman notes (citing this Forbes article), one Pennsylvania seller recently noted the haunting in his house ad, with the result that he actually ended getting more interest than expected:

I went back and forth,” Gregory Leeson says when asked about listing his Dunmore, PA home as “slightly haunted” on real estate website Zillow. “I thought I might as well. I didn’t think it would generate this much interest.”

But since uploading his for sale by owner listing on Sunday, Leeson has received multiple offers and interest from buyers as well as ghost hunters across the country. The home has also ignited a growing discussion on Twitter, with many sharing their own haunted home stories:

Leeson’s somewhat tongue-in-cheek description of his home, which is listed for $144,000, begins by pointing out typical features — 4 bedrooms and 2.5 bathrooms — before delving into the property’s more unusual characteristics:

“Slightly haunted. Nothing serious though,” he writes in the listing. “The sounds of phantom footsteps. A strange knocking sound followed by a very quiet (hardly noticeable, even) scream.”

While some people might recoil at the prospect of living in a “haunted” house and others might not care, […]

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Upcoming Federalist Society Faculty Conference Presentation on my Next Book – The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain

Next week, on Friday, January 3, between 5 and 6:15 PM, I will be doing a presentation on my next book, tentatively entitled The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain at the Federalist Society’s annual faculty conference. This will be a preview of the book, which will be the first book-length treatment by a legal scholar of Kelo v. City of New London – one of the most controversial decisions in the modern history of the Supreme Court, and the important constitutional property rights issues it raises. The book considers Kelo from the standpoint of both originalist and living constitution theory, and also has the most complete analysis to date of the enormous political reaction that Kelo generated. I have completed a first draft of the book, but will be making revisions over the coming months.

The Federalist Society conference will be held in parallel with the annual AALS conference nearby. I will be presenting as part of a panel focusing on works in progress. If you are coming to the AALS conference and are interested in constitutional theory, property rights issues, or eminent domain, I hope you will consider dropping by. Legal blogosphere mavens may be interested to know that Dan Markel of Prawfsblawg, a leading criminal law scholar, will be presenting a paper as part of the same panel.

UPDATE: In the initial version of this post, I accidentally forgot to include a link to the Fed Soc faculty conference’s website. I have now fixed that problem. […]

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My New Article on “The Borkean Dilemma: Robert Bork and the Tension Between Originalism and Democracy”

My new article, “The Borkean Dilemma: Robert Bork and the Tension Between Originalism and Democracy,” part of a University of Chicago Law Review symposium on the work of Judge Robert Bork, is now available on SSRN. Here is the abstract:

As a constitutional theorist, the late Judge Robert Bork was best known for his advocacy of two major ideas: originalism and judicial deference to the democratic process. In some cases, these two commitments may be mutually reinforcing. But Judge Bork largely failed to consider the possibility that his two ideals sometimes contradict each other. Yet it has become increasingly clear that consistent adherence to originalism would often require judges to impose more constraints on democratic government rather than fewer. The tension between democracy and originalism is an important challenge for Bork’s constitutional thought, as well as that of other originalists who place a high value on democracy. We could call the trade-off between the two the “Borkean dilemma.”

Part I of this Essay briefly outlines Bork’s well-known commitments to both originalism and judicial deference to the democratic process. Part II discusses his failure to resolve the potential contradiction between the two. In Part III, I explain why the tension between originalism and deference has become an increasingly serious problem for originalists and briefly consider some possible ways to resolve, or at least minimize, the contradiction. Some of these theories have potential, especially the idea that many types of judicial review might actually promote rather than undermine popular control of government. Ultimately, however, none of them comes close to fully resolving the conflict between originalism and democracy. The consistent originalist will likely have to accept substantial constraints on democracy. The consistent adherent of deference to the democratic process will have to reject judicial enforcement of major parts of the

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New Mexico Supreme Court Strikes Down State Law Limiting Marriage to Opposite-Sex Couples

In today’s decision in Griego v. Oliver, the New Mexico Supreme Court struck down state laws that limit marriage to opposite sex couples. I welcome the result, but would have preferred that the court based its decision on the ground that laws banning same-sex marriage discriminate on the basis of gender.

The court ruled that the laws discriminate on the basis of sexual orientation, and that laws discriminating against gays and lesbians must be subject to heightened intermediate scrutiny “because the LGBT community is a discrete group that has been subjected to a history of purposeful discrimination, and it has not had sufficient political strength to protect itself from such discrimination.” Ruthann Robson has a good summary at the Constitutional Law Prof Blog. The court based its decision on the New Mexico state Constitution rather than the federal constitution, so it almost certainly will not be reviewed by the federal Supreme Court. New Mexico has thereby become the 17th state to recognize same-sex marriage.

Although the court ruled that bans on same-sex marriage are unconstitutional, it rejected the alternative argument that they violate the state constitution because they discriminate on the basis of sex, even though the New Mexico state constitution includes an Equal Rights Amendment that forbids sex classifications unless they have a “compelling justification.” Here is the court’s reasoning on that point:

We do not agree that the marriage statutes at issue create a classification based on sex. Plaintiffs have conflated sex and sexual orientation. The distinction between same- gender and opposite-gender couples in the challenged legislation does not result in the unequal treatment of men and women. On the contrary, persons of either gender are treated equally in that they are each permitted to marry only a person of the opposite gender. The classification at

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Review of Peter Jackson’s Second Hobbit Movie – The Desolation of Smaug

I was thinking of writing a review of Peter Jackson’s second Hobbit movie, The Desolation of Smaug. But this review by Ethan Gilsdorf makes most of the same points I would have made. Overall, I agree with Gilsdorf that the Jackson’s second Hobbit movie isn’t nearly as good as the first, which I reviewed here. Like Gilsdorf, I think The Desolation of Smaug obscures the central point of the story by adding too many unnecessary scenes and subplots (including some that were invented by the film producers rather than J.R.R. Tolkien).

I’m not a purist who believes that film adaptations of books must rigidly stick to the plot of the original. Some changes are often necessary. But several of the ones in this movie just don’t work very well. That said, the movie is still fun to watch and there are many good scenes to offset the relative clunkers. […]

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University of Chicago Law Review Symposium on the Work of Judge Robert Bork

The University of Chicago Law Review recently posted its online symposium on the work of Judge Robert Bork, who passed away last year. The symposium includes essays by several prominent legal scholars, including Steven Calabresi, Bradford Clark, Richard Epstein, John Harrison, Kurt Lash, John McGinnis, and John Yoo. My own contribution, “The Borkean Dilemma: Robert Bork and the Tension Between Originalism and Democracy,” is available here. Here is a summary adapted from the Introduction:

As a constitutional theorist, the late Judge Robert Bork was best known for his advocacy of two major ideas: originalism and judicial deference to the democratic process. In some cases, these two commitments may be mutually reinforcing. But Judge Bork largely failed to consider the possibility that his two ideals sometimes contradict each other. Yet it has become increasingly clear that consistent adherence to originalism would often require judges to impose more constraints on democratic government rather than fewer. The tension between democracy and originalism is an important challenge for Bork’s constitutional thought, as well as that of other originalists who place a high value on democracy. We could call the trade-off between the two the “Borkean dilemma.”

Part I of this Essay briefly outlines Bork’s well-known commitments to both originalism and judicial deference to the democratic process. Part II discusses his failure to resolve the potential contradiction between the two. In Part III, I explain why the tension between originalism and deference has become an increasingly serious problem for originalists and briefly consider some possible ways to resolve, or at least minimize, the contradiction. Some of these theories have potential, especially the idea that many types of judicial review might actually promote rather than undermine popular control of government. Ultimately, however, none of them comes close to fully resolving the conflict between originalism and

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Property Rights on the Moon?

Space law scholar Glenn Reynolds (AKA Instapundit) has an interesting USA Today column on the potential development of property rights on the Moon:

On Saturday, a Chinese lunar probe made the first soft landing anyone’s made on the moon since 1976….

Though the landing was a big deal in China, most of the rest of the world responded with a yawn. Moon landing? Been there, done that.

But October Sky author Homer Hickam was more excited. He wondered on Twitter if China might want to make a territorial claim on the moon, noting that the area the lander is exploring may contain an abundance of Helium-3, a potentially valuable fusion energy fuel that is found only on the moon. According to former astronaut/geologist Harrison Schmitt, China “has made no secret” of its interest in Helium-3. Schmitt observes, “I would assume that this mission is both a geopolitical statement and a test of some hardware and software related to mining and processing of the lunar regolith….”

The 1967 Outer Space Treaty provides that “outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.” But that’s not much of a barrier.

First, the treaty only prohibits “national appropriation.” If a Chinese company, instead of the Chinese government, were to stake a claim, it wouldn’t apply. And, at any rate, China — which didn’t even join the treaty until 1983 — can, like any other nation, withdraw at any time. All that’s required under the treaty is to give a year’s notice.

So if the the Yutu rover finds something valuable, Chinese mining efforts, and possibly even territorial claims, might very well follow. And that would be a good thing.

What’s so good

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Happy Saturnalia!

Today is Saturnalia, an ancient Roman holiday whose celebration has become a Volokh Conspiracy tradition. OK, in reality it’s only a tradition in so far as I put up a post about it every year. But that’s as traditional as anything in the blogosphere is ever likely to get.

The Encyclopedia Romana describes this exciting holiday as follows:

During the holiday, restrictions were relaxed and the social order inverted. Gambling was allowed in public. Slaves were permitted to use dice and did not have to work. . . Within the family, a Lord of Misrule was chosen. Slaves were treated as equals, allowed to wear their masters’ clothing, and be waited on at meal time in remembrance of an earlier golden age thought to have been ushered in by the god. In the Saturnalia, Lucian relates that “During My week the serious is barred; no business allowed. Drinking, noise and games and dice, appointing of kings and feasting of slaves, singing naked, clapping of frenzied hands, an occasional ducking of corked faces in icy water—such are the functions over which I preside.”

Sadly, this year we have more than the usual number of strong contenders for the title of Lord of Misrule here in the Washington, DC area. I’m sure our commenters will have plenty of nominees. On the bright side, Saturnalia is definitely an appropriate occasion to purchase Volokh Conspiracy holiday gifts.

Happy Saturnalia to all you friends, Romans, and countrymen out there! […]

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Radagast the Brown on “The Climate of Middle Earth”

Here at the Volokh Conspiracy, we try to keep readers informed about important new academic research. So it’s essential that we link to this new paper by Radagast the Brown on “The Climate of Middle Earth.” Far from being “Radagast the Bird-tamer! Radagast the Simple! Radagast the Fool!,” as Saruman described him, or being diverted from his mission (as Gandalf believed), Radagast has actually been spending his time conducting important scientific research. For previous VC coverage of Radagast, see here. […]

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Uruguay Legalizes Marijuana

Uruguay recently adopted the most far-reaching legalization of marijuana attempted by any nation in recent decades:

The passage of a landmark marijuana legalization measure Tuesday means Uruguay is set to become the first country in the world to have a system regulating legal production, sale and consumption of the drug.

It’s practically a done deal. President Jose Mujica has to sign the bill before it becomes a law. But he’s long backed the measure, and there’s little doubt that he remains behind it….

Supporters of the proposal have said it marks a turning point and could inspire other Latin American nations to take a similar approach….

The proposed law would allow individuals to grow up to six plants of marijuana and possess as many as 480 grams for personal use. Marijuana clubs of anywhere from 15 to 45 members would also be allowed and granted permission to grow up to 99 plants at a time.

Users would have to register, and those claiming to use cannabis for medical reasons would have to show a doctor’s prescription. Marijuana would also be sold at licensed pharmacies.

The Uruguay law goes farther than legalization in such jurisdictions as Portugal and the US states of Colorado and Washington because it allows production and sale of marijuana to a greater extent than they do, as well as possession.

Uruguay’s action comes at a time when support for marijuana legalzation and skepticism about the War on Drugs more generally is rising in both the US and internationally. […]

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Germany’s President May Be Boycotting the Sochi Olympics

German President Joachim Gauck may be boycotting the Winter Olympics in Sochi, Russia, in order to protest Russia’s human rights abuses:

German President Joachim Gauck will not represent his country at the Winter Olympics in Sochi, Russia, his office says.

The announcement makes Gauck, a former pastor, the first major political figure to boycott the games, which will be held at the Black Sea resort in February.

According to a report in the German publication Der Spiegel, Gauck made the decision in protest against human rights violations and the harassment of Russian opposition political figures. The magazine said the Russian government was informed of his decision last week.

But Gauck’s office is downplaying the report. “He simply decided not to go,” his spokesman Tobias Scheufele told CNN. “We’re not saying anything about his motivations.”

Others have called for a boycott to protest Russia’s recent crackdown on gays and lesbians, which is just the tip of the iceberg of the Russian government’s repressive ways under the rule of Ex-KGB Colonel Vladimir Putin.

Washington Post blogger Jennifer Rubin argues for a limited boycott by world leaders:

The athletes are going to the games, for better or worse. (On one hand the almighty dollar and the bizarre primacy of sports make one queasy, on the other, one can sympathize with the young people who’ve devoted their lives for the perfect performance at just the right time.) But the politicians are an unnecessary and therefore dispensable part of the proceedings….

It would be a small but telling gesture if the Obama administration and all members of Congress would steer clear of Sochi. The athletes in full view of hundreds of millions around the world can compete — and then snag their endorsements. Refusal to grace Sochi with the presence of the

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