Harken Ye Libertarians: Come to Boston! Libertarian students throughout the Northeast should make plans now to come to the "Cradle of Liberty (& Larry Summers)" to attend the second annual Liberty Conference organized by the Boston University Libertarian Society on Saturday, April 9th at BU. Details and registration information is here. The first 30 people to register will receive a complimentary Boston University Libertarian Society mug at the conference. I have one already and it holds coffee and other hot liquids with style.

The speakers this year are:

Gary Lawson, my libertarian-originalist law professor buddy at BU. Gary likes Rand. Everyone likes Gary. His topic is "Naragansett Shrugged: When Should Judges Disobey the Law?" I have no idea what "Naragansett Shrugged" means, but am looking forward to finding out.

Glen Whitman, Cal State Northridge econ guru and Agoraphilia blogger extraordinaire, will explain how, by highlighting how human behavior deviates from the standard assumptions of rational choice, behavioral economics potentially provides a new justification for paternalist government intervention. How should libertarians react to this challenge? His lecture will discuss several lines of response to the behavioral economics literature, along with their policy implications. What, no pithy title like "Behavior Economics: Threat or Menace?"

Will Wilkinson of the Cato Institute and Flypaper blog will speak on "Pluralism, Sympathy and Lifestyle Entrepreneurship" or something along those lines. I know I always wanted to be a "lifestyle entrepreneur" and I finally get to find out how. My guess is that it is probably too late for me, but not for you.

Oh yes, and I will be speaking on (what else?) "Medical Cannabis & Ashcroft v. Raich." I will try to keep the audience awake with riveting tales of my duel with Justice Breyer and the Killer Genome "Tomato Children" (see oral argument transcript on page 30--I am not making this up).

Registration for students currently enrolled in accredited Boston areas school is FREE! So is registration for everyone else if you register now.

Update: Glen writes to offer this "pithy" title: "Meet the New Boss, Same as the Old Boss: Thoughts on the New Paternalism." The Who, Glen? Not exactly the cutting edge of popular culture. I like my proposed title better.

Grading Justice Kennedy: My short essay (7 pages) "Grading Justice Kennedy: A Reply to Professor Carpenter" forthcoming in the Minnesota Law Review is now available for downloading on SSRN here. Here is the abstract:

In my article, "Justice Kennedy's Libertarian Revolution: Lawrence v. Texas" (2002-2003 Cato Supreme Court Review 21 (2003)), I claim that Justice Kennedy's opinion in Lawrence is potentially revolutionary because it protects "liberty" rather than a right of privacy and shifts the burden of justification to the government without any showing that the liberty in question is fundamental, as required by well-established Due Process Clause doctrine. In his article, "Is Lawrence Libertarian?" (88 Minn. L. Rev. 1140 (2004)), Dale Carpenter calls into question my reading of Lawrence. In this brief reply, I respond to these criticism, by imagining that the words of Justice Kennedy's opinion were submitted to Professor Carpenter by one of his students as her answer to a final exam question based on the facts of Lawrence. I explain why he would have given the student a B precisely because the opinion deviates from the established doctrine that Professor Carpenter undoubtedly would have taught his class. Because it is a Supreme Court opinion and not a student exam answer, however, Justice Kennedy and the four justices who joined his opinion are free to ignore previous doctrine and adopt a potentiallyrevolutionary approach, for which I give Justice Kennedy an A.

As Larry Solum likes to say, "download it while it's hot."

Defending My Book: My reply to Trevor Morrison's review of Restoring the Lost Constitution: The Presumption of Liberty in the Cornell Law Review is now available on SSRN here. Because Trevor made four quite different criticisms, each requiring a response, I could not think of a clever unifying title for my reply (which will be published in the Cornell Law Review along with his review). So I called it, Why You Should Read My Book Anyhow: A Reply to Trevor Morrison. Here is the abstract:

In his review of my book, Restoring the Lost Constitution: The Presumption of Liberty, Trevor Morrison takes issue with (1) the relationship I describe between constitutional legitimacy and constitutional method, (2) my particular defense of originalism, (3) the operation of my proposed construction of the Constitution--The Presumption of Liberty--and (4) my interpretation of Lawrence v.Texas.

In this reply I defend the fact that I hold a conception of constitutional liberty at partial variance from that of the Founders, the reasonableness and limits of originalist interpretation, the conception of the police power identified in Restoring the Lost Constitution, and my reading of Lawrence v. Texas. Because Professor Morrison's objections are not atypical of those I have heard from others, I hope that reading my reply will induce skeptics of my approach to read my book anyway.

Indeed, I often heard these criticisms of my approach from faculty commentators when I was on my book tour last year, so this is a nice opportunity to answer them.

While you are in a downloading mood, you can also download my short essay about Lawrence v. Texas called, "Grading Justice Kennedy: A Reply to Dale Carpenter" here. I posted about it on Tuesday.

Speeches This Week in Massachusetts and Texas: This week, I will be giving three talks on "Medical Cannabis, The Commerce Clause & Arguing in the Supreme Court":

Tuesday (April 5th) at Bridgewater State
Thursday (4/7) at Texas Tech
Saturday (4/9) at the BU Libertarian Society
I describe the program for the BU Liberty Conference here. Registration (free) is here.

Other speeches in April:
Thursday of next week (4/14) the University of Arizona (Ashcroft v. Raich)
Monday (4/25): Quinnipiac (Ashcroft v. Raich)(making up for speech that was snowed out)
Wednesday (4/27) at The Social Law Library, in Boston (on my book Restoring the Lost Constitution: The Presumption of Liberty).

RECENT DOWNLOADS AVAILABLE ON SSRN:
Why You Should Read My Book Anyhow: A Reply to Trevor Morrison
Grading Justice Kennedy: A Reply to Dale Carpenter