Randy E. Barnett

The Function of Several Property and Freedom of Contract

Suppose you are on a commercial airplane that is flying at 35,000 feet. Next to you sits a man who appears to be sleeping. In fact, this man has been drugged and put upon the plane without his knowledge or consent. He has never flown on a plane before and, indeed, has no idea what an airplane is. Suddenly the man awakes and looks around him. Terrified by the alien environment in which he finds himself, he searches for a door or window from which to make an escape. As luck would have it, he is seated right next to a window exit and he begins to pull the handle that will open the window. You are aware that opening the window exit at this altitude will cause the cabin to quickly depressurize and that this man, you, and probably several other passengers will be sucked out the window to your deaths. You desperately want to stop him from opening the window. Now assume that for some reason it is impossible to prevent him physically from performing the deadly act. Your only option is to rationally persuade him to leave the window exit alone. You cry out to him and, with both hands on the handles, he turns to face you and waits to hear what you have to say. What sort of argument would you make?

The Rights retained by the people : the history and meaning of the Ninth Amendment

This anthology of scholarship by distinguished legal academicians on the Ninth Amendment of the U.S. Constitution comes at a time when interest in the Ninth Amendment is on the rise. The Rights Retained by the People brings together in one volume the critical writings on the Ninth Amendment, from the first published article (1936) to several important articles published in the 1980s. This invaluable anthology is an essential addition to constitutional law collections. Contributors: James Madison, Edward S. Corwin, Knowlton H. Kelsey, Bennett B. Patterson, Norman Redlich, Eugene M. Van Loan, III, Randy E. Barnett, John Hart Ely, Raoul Berger, Simeon C.R. McIntosh, Russell L. Caplan, Calvin R. Massey, and Charles L. Black, Jr. Co-published with the Cato Institute.

Contract Scholarship and the Reemergence of Legal Philosophy

There is nothing really new about the iconoclasm of the American realists. What is new, however, is the reception of their notions among lawyers, and in this sense the great significance of the realist movement for legal history lies in the recognition that it is possible to have lawyers, and flourishing lawyers, without law in the sense that law traditionally has been understood. Whether this state of affairs is to be regretted or welcomed is debatable, but it is clear that it offers no hospitality to the legal treatise. -A.W.B. Simpson3

Review essay / public decisions and private rights

John Kaplan, The Hardest Drug: Heroin and Public Policy Chicago: The University of Chicago Press, 1983, xi + 247 pp.

The First Decisions

When a lawsuit challenges the constitutionality of a statute, the first step for the government is usually to file a “motion to dismiss,” which is an argument that a case should be thrown out because the plaintiffs’ arguments are simply not good enough to hold the court’s attention. A successful motion to dismiss can kill a case before it even gets off the ground. Many legal academics predicted that the challenge to Obamacare would not even survive a motion to dismiss, which is an almost sneering way of indicating how bad they thought the arguments against the law were.

The Law is Passed

Two days before President Barack Obama signed the Patient Protection and Affordable Care Act, Randy Barnett wrote this op-ed (abridged here) for the Washington Post. Barnett would eventually find himself on the legal team that challenged the law in the Supreme Court. At this time, however, there were just less-refined arguments and the hope that some court would take those arguments seriously.

Decision Time and Aftermath

The last week of June, which is the last week of a Supreme Court term, is always a busy time for Court watchers. The Court often waits until then to issue the biggest and most controversial decisions, which are also usually the longest ones.

The Big Show

On November 14, 2011, the Supreme Court agreed to hear the cases of National Federation of Independent Business v. Sebelius and Florida et al. v. Department of Health and Human Services.

Moving Up the Ladder

On June 29, 2011, the United States Court of Appeals for the Sixth Circuit upheld the individual mandate against a challenge brought by the Thomas More Law Center. Writing in concurrence with the panel was Judge Jeffrey Sutton, a noted conservative jurist and one-time clerk of Justice Antonin Scalia.

Postscript and Concluding Thoughts

In the aftermath of the Supreme Court’s decision in NFIB v. Sebelius, I authored op-eds for SCOTUSblog, the Washington Examiner, the Daily Beast / Newsweek, and the Washington Post, the last of which is reproduced in previous chapters. All sounded a similar theme: although I was bitterly disappointed by the failure of our legal challenge to bring down the woefully misnamed “Patient Protection and Affordable Care Act,” we were victorious in defeating the expansionist readings of the Constitution that had been offered by the government, and by many law professors, on behalf of the constitutionality of the individual insurance mandate.