In a thought-provoking conversation with Tyler Cowen, Jamal Greene, a constitutional law expert, challenges the traditional American view of rights and proposes a fresh perspective.
He also discusses the need for changes in the legal education system and the future of baseball.
Non-lawyers in Supreme Court
While many of the court’s cases are technical and may require a legal background, there are also cases that are not uniquely suited to lawyers.
The idea of having non-lawyers on the court is open for discussion, but it is not necessary for democratic representation.
Legal Education Reform
The American legal education system requires significant changes, including altering the professional hiring calendar in law, making textbooks free for law students, and reducing the reliance on the LSAT system in law school admissions.
Additionally, law reviews should be student-edited to provide valuable experience and contribute to the editing process.
Blind Review of Law Articles
Law reviews should have a blind review of articles, where the editors do not know who wrote them.
This could ensure that articles are judged on their merits rather than the reputation of their authors.
Understanding Economic Rights
There is a dichotomy in the legal culture where some rights are understood in strong terms while economic rights are seen as very weak.
People have a basic right to the government justifying when it regulates them.
Over-Legalistic Society
American society is too legalistic, with political disputes too often submitted to legal resolution.
However, this is separate from the advice to avoid speaking with law enforcement, which is seen as a rational mistrust of state power.
Rethinking Rights
The American perception of rights as fundamental, inflexible, and universal is not in alignment with global perspectives or even the vision of the American founders.
Instead, rights should be seen as products of political negotiation, not as absolute entities.
Rights, in my view, in a constitutional sense, can arise in lots of situations whether the government’s acting well or not acting well because rights, I think, are just a byproduct of pluralism. – Jamal Greene
Diversity in Supreme Court
The Supreme Court could benefit from justices who come from diverse backgrounds, not just from the judiciary.
This exposure to other forms of decision-making could be beneficial as the court often decides on serious political and moral questions.
I think that the number of sites where that political negotiation is possible should be greater… I think that that gives people leverage in political negotiation in ways that they don’t have when you say okay, you’ve got a kind of absolute free speech right that applies the same way everywhere. – Jamal Greene
Rights for Disabled People
Making disabled people a protected or partially protected class does not require people to be on a stigmatizing registry of disabilities.
Rights should be available to those who wish to exercise them without legal formalisms getting in the way.
Potential Legal Uncertainty
Implementing a new vision of rights could potentially lead to legal uncertainty, as courts and political actors may struggle to understand their rights and obligations.
Some flexibility and inconsistency in the law is not necessarily bad, but it could upset expectations and make planning difficult.
Misalignment of Rights
There is a misalignment between the rights that are currently recognized in American culture and those that are not.
Many rights are not connected to any deep conception of justice, while genuine claims of justice, such as disability rights, are unrecognized.
Law and Economics Reasoning
The law and economics style of reasoning is not problematic as long as its limits are understood.
It is a valid form of reasoning, but it should not be seen as the only legitimate method.
Other methods are also valid and important.
Baseball’s Future
Baseball needs to adapt to the modern age to attract a younger and more diverse audience.
The sport’s structure is currently not well-suited to the modern age, and its historic exemption from antitrust law should be reconsidered.
