Be careful what you wish for. Leftish critics of the “neoliberal order” have found their champion in, of all people, Donald Trump, who poses a far greater threat to neoliberalism than the Seattle rioters of 1999, French farmers, and Hugo Chavez put together. The critics complained that the neoliberal order favored U.S. commercial and political interests at the expense of workers, especially those in the developing world. If so, what does Trump have to gain by bringing it down?

Two possibilities suggest themselves. The first is old-fashioned economic nationalism. On this view, the neoliberal order gave the Europeans too much, thanks to concessions by the United States as it struggled to maintain the cold-war alliance against the Soviet Union. A major goal of European integration was the creation of a trading bloc that would negotiate with the U.S. on equal terms. To ensure that Europe presented a united front, European countries were required to resolve their differences prior to international trade negotiations and forbidden to negotiate with the U.S. (or any other country) one on one. The Americans accommodated European integration during the cold war because they sought a bulwark against the USSR. Trump now seeks to undermine this bloc in order to enhance U.S. bargaining power, allowing Americans to skim off more of the surplus from the Atlantic trade. If the European approach made sense for the Europeans, then Trump’s does for Americans, especially now that the Soviet Union has been replaced by a military weakling. Can he succeed? That depends on the Europeans. In the wake of Brexit, Trump may see an opportunity for economic division and conquest that others have missed.

The second is cultural. Trump has taken the helm in the assault on cultural neoliberalism, by which I mean human rights. Contrary to the view in the United States, the Europeans—not the Americans—have always been the major champion of the international human rights regime, which it has used since the 1970s to present itself as a third way between the Soviet Union (now Russia) and the United States. Trump seeks to enhance his standing among his supporters by humiliating Europe and the values it stands for. This possibility only occurred to me when a friend sent me links to Breitbart articles that attack Europe for trying to impose its cultural values on the United States, or for embracing immigration or censorship of right-wing speech. (No, I don’t read Breitbart myself, but should I start?)

These two theories make sense (barely?) of Trump’s desire for a rapprochement with the Russians. Trump and Putin share a desire to divide Europe so as to enhance their economic bargaining position, and to weaken Europe’s moral authority by reducing it to a bunch of squabbling states who can agree on nothing. Since Russia no longer poses a threat to the United States as the Soviet Union did, the United States no longer needs a strong Europe as an ally. Note Trump’s identification of Europe with Germany: with Britain out of Europe, and Russia on America’s side, is he trying to evoke nostalgia for the Grand Alliance?

Is it self-serving to argue that the populist backlash against international law confirms my longstanding skepticism of mainstream international law scholarship? Yes. Am I victim of confirmation bias? Maybe. Still, is it plausible …?

Liberal Internationalism and the Populist Backlash

Abstract

A populist backlash around the world has targeted international law and legal institutions. Populists see international law as a device used by global elites to dominate policymaking and benefit themselves at the expense of the common people. This turn of events exposes the hollowness at the core of mainstream international law scholarship, for which the expansion of international law and the erosion of sovereignty have always been a forgone conclusion. But international law is dependent on public trust in technocratic rule-by-elites, which has been called into question by a series of international crises.

In an op-ed published yesterday in the Wall Street Journal, Barbara Novick, a top executive at BlackRock, criticizes our call for reform of institutional investors to ensure they do not reduce competition. She says our argument in A Proposal to Limit the Anti-Competitive Power of Institutional Investors (written with Fiona Scott Morton) lacks “economic logic and factual support.” We naturally disagree.

First, she claims that institutional investors have no incentive to raise prices because some of their customers are businesses that institutional investors own. This is like saying that a gasoline monopolist would not raise the price of gasoline because some of its employees drive cars. No economist would accept this argument.

Second, she claims markets have become more competitive during the rise of institutional investors. The truth is the opposite, as noted by the Council of Economic Advisors and dozens of recent papers in leading economics journals.

Finally, she accuses our proposal of “eliminating the benefit of diversification.” Much of our paper is devoted to showing that our proposal would diminish diversification by a de minimis amount. Furthermore, and contrary to her claim that “investors would be forced to decide which fund manager might select the highest performing company in each sector,” our proposal allows individuals to diversify as much as they wish across institutional investors.

(Written with Glen Weyl)

I have an op-ed in the Times arguing for antitrust-based regulation of the major institutional investors, written with Fiona Scott Morton and Glenn Weyl. Our argument is developed in an academic paper posted at SSRN.

Historians tell us that Teddy Roosevelt created the modern presidency by using the office as a “bully pulpit.” Unlike earlier presidents, Roosevelt took his policies to the public rather than working through Congress. With public support, Roosevelt could then pressure Congress to adopt his policies through legislation. The president became the primary policy-maker, or at least a first among equals, rather than an executor of policy determined by Congress.

But Roosevelt communicated to the public through the press, and the press did not always present his arguments in a favorable light. The next step in the evolution of presidential power was the fireside chat of Franklin Delano Roosevelt. FDR, unlike TR, spoke directly to the people over the radio, partly sidestepping the press.

Ronald Reagan (the original “great communicator”) revived this practice, but the world of the 1980s was different. The radio was not a central medium of communication, and radio stations felt constrained to offer Democrats a response. With the advent of the internet, this effort to speak directly to the public—even if repackaged as podcasts, starting with George W. Bush—was hopelessly ineffective. The historian Julian Zelizer, writing in 2011, had this to say:

President Obama has gone to great lengths to find new ways to reach the American people. But he is trying to achieve a 20th-century goal in a century when it is no longer possible. The reality is that presidents, Democrat or Republican, will have to find new ways to exercise what power they have and should no longer expect the opportunity to simply take their case to the public.

Time does not reflect kindly on this assertion. Trump has done just this, in his campaign, and as president-elect, and no doubt he will as president as well. Those of us who do not like Trump or his policies need to concede that he is a brilliant tactician. He has used Twitter to take his case to the public far more effectively than any president since at Reagan if not before.

How was this possible? Twitter, like communication technologies that came before it, features a winner-take-all quality: the people with the most followers gain still more simply by virtue of being the most followed. But unique among communication technologies, it plays to certain Trumpian strengths: pithy, simple statements that are (usually) brutal and (occasionally) humorous. Other politicians used Twitter as an outlet for carefully vetted presses releases rather than exploiting the unique qualities of the medium, which requires spontaneity or at least the appearance of it, and a willingness to sling mud at the slightest provocation (or none at all).

It is hard to say much in 140 characters but Trump realized that he could advance his agenda by linking to longer pieces in media outlets. People who wanted more elaborate statements of policy or reasoning could follow the links. Here is where Trump made another crucial innovation. Rather than link consistently to a respectable or semi-respectable outlet of conservative opinion, he linked to any media outlet—no matter how disreputable—that contained an item that supported his immediate goals. While in this way relying on the press (or “press”) like previous presidents, he also undermined its ability to stand as an intermediary between president and public by inserting its own views when it disagreed with the president. He links to a piece only when it serves his interests, and does not show loyalty to any particular outlet, which means that websites now struggle to publish things that will please him. They are passive wholesale content providers to the Trump media machine rather than retail outlets with any chance of building up a brand that is distinct from the Trump brand. Meanwhile, the respectable press helplessly republishes Trump’s tweets to an even broader audience. It acts for good journalistic reasons—he is president-elect and everything he says is news—and yet in the process further strengthen Trump and weaken their own position as intermediaries between the president and the people. While everyone frets over Trump’s specious threat to strengthen libel laws, it is his perfectly lawful use of Twitter than will damage the press more than anything else.

What are the Democrats to do? I suspect the only thing that they can do is find a “big man” (or woman) of their own, someone who will become the focal point of Democratic policies, and can tweet, on behalf of the Democrats, as effectively as Trump can, insults and all. Parties that are out of power have never been very good at rallying around a single spokesperson. Indeed, the Republicans did not rally around Trump until after he won. So I suspect that this person will not rise up through the Democratic party establishment but, like Trump, from business, entertainment, or the military. An age of personalistic politics is upon us.

It means that it is dead, doesn’t it? Sunset, not Twilight. Political efforts by beleaguered liberals in the United States may (or may not) suffice to prevent Trump from registering Muslims, torturing suspected terrorists, and suing newspapers. But these efforts will be focused inward: nothing will be left to compel him to promote international human rights law rather than cozy up with authoritarians like Putin. Indeed, the image of Trump touting human rights is ludicrous, unimaginable—not even with the malevolent sarcasm of Putin, who claimed that the invasion of Ukraine was necessary to protect the human rights of the Russian-speaking minority. Meanwhile, the other champion of human rights—the European Union—is at death’s door itself, besieged from within by nationalist movements and renegade member states like Poland and Hungary, and from without by Russia and the ever-present Islamic terrorist threat. A newly reinvigorated anti-liberal China completes the picture.

International lawyers and cosmopolitan political scientists will insist that the slack can, will, must be taken up by international institutions, like the various human rights committees, the UN Human Rights Council, the European Court of Human Rights, and the International Criminal Court. But none of these institutions—with the limited exception of the ECHR—were ever very effective, and the European system is now in disarray, while the ICC is on the verge of collapse, as African states and Russia abandon it. None of these institutions can survive without the money and political support of the states that are increasingly unwilling to tolerate their criticism. The question is: what, if anything, will rise from the ashes?

It has been a key tenet in the current ideology of liberal democracy that, while regulatory powers are being transferred from Congress to the presidency, fiscal authority remains firmly in the hands of Congress. The power to tax and spend is at the core of sovereign power, and so as long as Congress retains this power, we aren’t really yet in a system of presidential primacy, as some people have argued.

Yet there are clues that even the fiscal power is drifting over to the executive branch, or at least away from Congress. The New York Times today reports on efforts by economists and central bankers to persuades legislatures to spend more money in order to stipulate economic growth. But Congress won’t; it’s gridlocked as always. So who is going to do it?

The central banks, of course. It has long been understood that while central banks are supposed to limit themselves to “monetary policy” (controlling the money supply by buying and selling securities, lending to and borrowing from banks, and so on), they have in recent years been engaging in fiscal policy as well. They do this mainly by purchasing long-term government bonds, private bonds, and quasi-government bonds (like GSE bonds). These purchases are premised on the assumption that, by promoting economic growth, they will eventually drive up interest rates, which will result in the loss of value of those bonds, in which case the central bank will lose money and pass those losses onto the “government” (Congress and the president), which will need to raise taxes or cut spending.

This has always been true—indeed, in my own hazy understanding the distinction between monetary and fiscal policy is not very clear, since the government expects to receive the “profits” from monetary policy in any event and plans accordingly—but the key point, as reflected in the Times article, is that the more overtly fiscal aspects of central bank activity is being normalized, as a result of lingering post-crisis economic stagnation, here and in other developed countries, along with legislative gridlock.

True, the president does not control fiscal policy—not yet—but the gradual, barely noticed, shift of fiscal policy from Congress to a regulatory agency deserves more attention than it has received.

Trump does not hold any discernable constitutional philosophy but Trumpism owes its meteoric rise in part to originalism, which was so forcefully championed by Antonin Scalia over his long career. I see Trumpism as having three parts: (1) a policy commitment to economic nationalism and law and order; (2) a nativist emotional appeal; and (3) a nihilistic attack on elites and elite institutions—nihilistic because there is no explanation as to what will replace them, only the hope that something better will. It’s #3 that I associate with originalism.

It’s not that originalism itself is nihilistic—quite the contrary. Originalists believe that constitutional law today should be based on the understanding of the Constitution and its amendments when they were ratified. According to its supporters, the original understanding supports a limited national government of the sort that existed before the twentieth century. Such a government would be deprived of the power to interfere with people’s economic and political liberties but would remain strong enough to protect the country and support a national market.

The nihilism lies not in the vision itself, but in the implications, which were originally implicit, but have been spelled out more explicitly in the last two decades, with Scalia as champion. The argument is that because American law and legal institutions have deviated from this understanding, they are illegitimate. The entire administrative state—the EPA, OSHA, Obamacare, social security, and all the rest—is illegitimate. The administrative state is the apparatus through which the national government accomplishes its objectives; without it, it can hardly do anything beyond defense and internal security.

And what this means is that presidents from FDR (if not earlier) to Obama have wielded authority that they did not have. That Congresses have betrayed the nation by acquiescing in the aggregation of presidential power. That the Supreme Court has failed to enforce the Constitution. Nearly all the officeholders at the top of our government over the last century have violated their oath to defend the Constitution.

While the view now is that the cancer has metastasized, at one time originalists and their fellow travelers thought that the remedy was simple and could be accomplished within constitutional forms. All that was necessary was for the public to elect a president who takes the Constitution seriously, and for that president to appoint originalists to the Supreme Court. Optimists believed that even liberal jurists could be persuaded to adopt originalism, leaving even Democratic presidents no choice but to appoint originalists to the bench. Once in office, these justices would work to overturn a century of precedents and welcome home what has been called the “Constitution in exile.”

During the Reagan administration it was just possible for an intelligent person to believe in this vision. High-level officials really did take this view seriously and expended effort to bring it to reality. But they failed. It turned out that there was no mainstream political support for originalism—in a substantive as opposed to merely rhetorical sense. Most ordinary people admire the founders but want a strong national government, and all the goods that it provides—from social security to environmental protection.

The major cause of the failure of originalism was thus practical and political. Reagan was able to appoint only one Supreme Court justice who was an originalist—Scalia himself. His other two appointments—Kennedy and O’Connor—were not originalists. Over the years, presidents—whether Democrats or Republicans—failed to appoint originalists (except Clarence Thomas). In retrospect, two major knells of originalism’s doom were the appointments of Alito and Roberts by George Bush—solid conservatives but not originalists. It also became clear that Bush did not care about originalism or even the Supreme Court; not even ideologically conservative presidents could be depended on to ensure an originalist Supreme Court. Meanwhile, Supreme Court decisions themselves—while more conservative than in decades—did nothing to dismantle the administrative state, in fact, to the contrary, affirmed it.

Scalia finally realized this. His initial happy-warrior pose gave way to bitterness, and over the years his dissents became increasingly shrill, as he came to use them as platforms to attack the Court rather than merely to disagree with his colleagues.

It was quite a rhetorical trick, but Scalia managed to anticipate Trumpian populism by associating the constitutional vison of the aristocratic founders with democracy, and accusing the liberal justices—who emerged from and hobnobbed with the same exclusive circle of establishment types as he did—of being out-of-touch elites. It was this claim that helped pave the way for Trumpism. A key element of Trump’s appeal derives from the sense that American institutions have failed us. Scalia, and the Republican politicians who deified him, confirmed this view by placing the blame squarely on the shoulders of a hopelessly corrupted Supreme Court while invoking a nostalgic vision of purer times. And who would be better placed than Scalia to make this accusation? The old, moderate response of Republican presidents from Nixon to Bush—“we’ll appoint better justices”—no longer persuades. They promised and failed to deliver. The rot is complete, the structure must be set alight in a long overdue Gotterdammerung.

I suspect that the vanishingly tiny number of pro-Trump conservative intellectuals described by Peter Beinart see in him Sulla, who reestablished republican institutions after his dictatorship, not Caesar (as Beinart claims), who sought to dismantle them permanently. I find it hard to imagine Trump, as dictator legibus faciendis et rei publicae constituendae causa, going to the trouble of proscribing the Democratic party, only to place nine originalists on the Court before retiring discreetly to Mara-a-Lago. But with the conservative intellectual establishment in ruins, there’s nothing left but hope.

That’s the title—or the beginning of an uncharacteristically long title—of a paper that Glen Weyl and I have posted on SSRN. Here’s the idea:

Every year you send to a registry the amount that you value your house. The property tax you pay is a percentage of the valuation. But you’ll resist the impulse to value your house at 1 cent because if you do, someone will come along and buy your house from under you. That’s because of the other element of the scheme: anyone can force a sale of your house at your self-assessed valuation. The tax is keyed so that you will honestly reveal your valuation, to the extent compatible with maintaining incentives to invest in improving the house.

One person I described this idea to reacted very negatively, at one point calling it “socialism” and at another point calling it “the market gone wild.” Or maybe it’s both? Or neither? You’ll have to read the paper to find out.

Without quite saying so, Jack Balkin hints that he may be. Others, like his Balkinization colleague Sandy Levinson, are more confidant that he is. So is he?

Let’s start with Trump’s policies. He is skeptical about international trade and immigration, supports law and order, and wants to reduce regulation and taxes. His position on social issues is ambiguous and probably moderate. This is an unusual combination of views for a presidential candidate, but these positions are hardly beyond the pale. There are respectable (if not necessarily correct) arguments for all these commitments, and they enjoy the support of millions of Americans, and have at various times in recent history been pursued by the national government, as well as the governments of other liberal democracies. If President Trump kept his campaign promises in good faith, he would hardly be a threat to the constitutional order, whether the policy consequences would be good or bad.

The real source of alarm seems to be Trump’s incivility, and his reckless and frequently erroneous statements—including sarcastic asides, jokes, and semi-deniable provocations that have offended millions of people. Yet most of these statements are not statements of policy or intention but merely (incredible) rudeness to people who are generally treated respectfully by politicians even in the heat of a campaign. It is possible to argue that a person who says that a judge is biased against him because of the judge’s Mexican heritage would also, as president, defy the Supreme Court. Or that someone who would ban Muslims from entering the United States would also be willing to round up American Muslims and put them in internment camps after the next Islamist terrorist attack. But these are leaps of logic—like saying that because Hillary Clinton is willing to accept Syrian refugees onto American soil, she wants to forcibly convert all Americans to Islam. Trump’s offensive verbal attacks might disqualify him from the presidency on political grounds, but they do not show that he plans to violate constitutional norms.

The major import of these statements is what they say about his temperament. But here again, while I agree that Trump lacks the temperament to be president, this is a political, not a constitutional, judgment, unless perhaps one thinks that he is literally insane, say a “sociopathic narcissist,” to quote Sandy. But he’s not insane, and this flinging around of medical vocabulary words as if they meant anything should be avoided.

Jack concludes his post with these words:

On the other hand, it’s also possible that if Trump wins in November, people will become increasingly fearful about what he and his allies will do. As the time grows closer to Trump’s actually taking office, people’s views about what the Constitution allows may undergo significant change. For example, we might see vigorous debates about the responsibility of members of the electoral college to vote their consciences rather than for the candidates who won their respective states. We might also see debates about what will throw the election into the House of Representatives (for the Presidency) and the Senate (for the Vice-Presidency). We may even see schemes floated that try to place Mike Pence, or Tim Kane, or even Speaker Paul Ryan in office instead of Trump or Clinton following a deadlock in the House; or schemes that try to use the Twenty-Fifth Amendment to keep Trump from exercising the powers of the Presidency on the grounds that he is mentally unstable or incompetent.

The striking claim here is that even before Trump takes office, some substantial portion of the public—or (more likely) of the elites—will try to block a democratically elected president from taking office (albeit by reinterpreting the Constitution as though they were law professors). I don’t think there is any possibility that this will happen—unless Trump announces during his campaign that he plans to shut down the courts and Congress. (Which is unlikely but I suppose one can’t rule out anything this campaign season.) Trump will likely lose the election just because all of offensive statements will cost him political support, as they should; that’s how democracy works. And if he doesn’t, our panicking liberal elites will need to decide whether to throw their lot against democracy as Jack predicts they will (as the liberals did in Egypt but not in Turkey), but if they do, then they will need to acknowledge that the threat to constitutional order is not Trump, but they.

Trump is a recognizable type. He is the twenty-first century version of the billionaire rabble-rouser who gains power by appealing to the mob—almost a stock character in the waning years of the Roman Republic. The founders certainly feared such a person, but the major obstacles to the presidency that they created or kept in place in order to keep a demagogue out of the office—property qualifications for voting, indirect elections, federalism, separation of powers—have mostly been dismantled. Even in our democratic age, it seems that some people are coming to appreciate the vision of elite-led democracy that these institutions were meant to sustain. Trump may not threaten the constitutional order himself, but he is provoking the elites to reconsider their support for a constitutional order in which someone like Trump could be elected president.

A guest post by Will Baude, Adam Chilton, and Anup Malani.

Yesterday we argued that claims about legal doctrine are frequently made without sufficient support, and argued that this can be a problem that should be remedied. Today we will briefly sketch our proposed solution.

In response to analogous concerns, other disciplines have developed methods for conducting “systematic reviews” of prior findings on a research question. Individual studies may have limited statistical power to answer a research question and their conclusions may be bound by the specific circumstances in which they were conducted. By contrast a review could aggregate the data and contexts from multiple studies to yield both a more precise and generalizable study. But it is important that the reviews be conducted in a rigorous way that minimizes the kind of bias and error we have discussed.

Although there are a number of variants of systematic reviews, they generally have four steps. First, the researcher should state clearly the question she is attempting to answer. Second, the research must justify and be transparent about how she defines and obtains the sample for her review. Third, the research ought to explain any weighting that is applied to the cases in the sample. Fourth, the researcher needs to justify and be transparent about the manner in which she analyzes the sample cases she reviews.

We argue that the insights of systematic review can be extended to law. It is true that legal analysis tends to be qualitative rather than quantitative, and that legal analysis is more likely to embed normative issues, but in our view those are not reasons to ignore the lessons of systematic review. On the contrary, a rigorous methodology allows us to separate positive and normative contributions and move arguments forward.

In our new essay, we explain exactly how we’d extend these four steps to legal analysis, and provide an example of a systematic review in action. Read it if you’d like to learn more.

I discuss the end of the term with Emily Bazelon, Will Baude, and Nikole Hannah-Jones in the Times Magazine. More coming.

I debate (with Adam Cox) Mike McConnell and Carrie Severino, here.

Here. Does this make me a tyrannophobe?