In the Mail: Hamburger's "Law & Judicial Duty": Philip Hamburger's new book, Law and Judicial Duty, arrived. It is a "big" book both in ambition and sheer length (621 pp.). Here is the publisher's description (which is typically written by the author).

Almost every day, a judge in the United States holds a statute unconstitutional. This power of the judges is known as "judicial review," and it often seems the central feature of American constitutional law. The authority and scope of this power, however, have long remained unclear, and because historical accounts have tended to suggest that the judges themselves largely developed judicial review, the history has given credence to the view that judges enjoy considerable discretion over the extent and exercise of this power.

Law and Judicial Duty presents a very different history and a very different conception of the power of the judges. Drawing upon previously unexplored evidence, Philip Hamburger reveals the familiar notion of judicial review to be largely an illusion produced by modern assumptions, and he shows that what today is called "judicial review" was once understood more simply as part of the duty of judges to decide in accord with the law of the land. His book challenges many modern assumptions about the extent of judicial power, and by exploring judicial duty in its social context, the book raises sobering questions about the nature of law and the possibility of government under law.

I think Hamburger is a very interesting writer and I always learn from his work. From the description, I think I will be in considerable agreement with his thesis. For my take on judicial review you can see the (much shorter) Original Meaning of the Judicial Power. Here is the abstract

In this paper, I refute any claim that judicial review was invented in Marbury v. Madison, or that, because it is contrary to the original meaning of the Constitution, it must be justified by some nonoriginalist interpretive methodology. I will do so, not by discerning the shadowy and often counterfactual "intentions" of the founding generation, but by presenting as comprehensively as I can what the founders actually said during the constitutional convention, in state ratification conventions, and immediately after ratification. These statements, taken cumulatively, leave no doubt that the founders contemplated judicial nullification of legislation enacted by the states and by Congress.

In short, I shall demonstrate that the original meaning of the "judicial power" in Article III, included the power of judicial nullification. Many constitutional scholars who do not consider themselves to be originalists nevertheless acknowledge that originalism provides the starting point of constitutional interpretation or at least is a factor to be considered among others. It is equally important that these nonoriginalists are made aware of the substantial evidence that the original meaning of the "judicial power" included the power to nullify unconstitutional laws.

I do not claim that my essay can possibly cover the ground of Hamburger's massive study. But I do think our conclusions are similar: judicial nullification was widely understood to be included in the original meaning of "judicial power" to which Article III refers. But the modern conception of "judicial review" goes well beyond this.

In the Mail: A New Collection of Writings by Bruno Leoni: Bruno Leoni (1913-1967) was an Italian libertarian philosopher and lawyer whose book, Freedom and the Law, was required reading in the 1970s for libertarians interested in law. Leoni's blend of law and economics insights with his view of the common law as a spontaneous order influenced--and was in turn influenced by--the work of Friedrich Hayek.

In 2003, the Bruno Leoni Institute was founded in Italy to preserve and develop the libertarian approach to law that was so dear to Leoni's heart. In 2007, on the fortieth anniversary of his death, I spoke at a marvelous conference they held in Turin on Leoni's thought.


Now, for the first time since Freedom and the Law appeared in 1961, comes a new collection of translated writings by Leoni entitled, Law, Liberty and the Competitive Market, edited by Carlo Lottieri (pictured below), an Italian libertarian philosopher and co-founder of the BLI. The volume begins with a major new piece by Richard Epstein on the significance of Leoni's thought that appears as the Foreword.