“”Criminal laws have grown so exuberantly and come to cover so much previously innocent conduct that almost anyone can be arrested for something,” Supreme Court Justice Neil Gorsuch observed in 2019. Gorsuch elaborates on that theme in his new book Over Ruled, showing how the proliferation of criminal penalties has given prosecutors enormous power to ruin people’s lives, resulting in the nearly complete replacement of jury trials with plea bargains.
“Some scholars peg the number of federal statutory crimes at more than 5,000,” Gorsuch and co-author Janie Nitze note, while “estimates suggest that at least 300,000 federal agency regulations carry criminal sanctions.” The fact that neither number is known with precision, they suggest, speaks volumes about the “unpredictable traps for the unwary” set by the government’s ever-expanding rules.
To illustrate “the human toll” of “too much law,” the book tells the story of Florida fisherman John Yates, whose grueling legal odyssey began with the charge that he had discarded undersized red grouper. That alleged act supposedly violated a law aimed at deterring the destruction of potentially incriminating financial records. Gorsuch also recalls the pretrial suicide of 26-year-old computer programmer Aaron Swartz, whom prosecutors threatened with “decades in prison and millions in fines” for downloading a bunch of articles from an online academic library without permission.
Over Ruled emphasizes how overmatched ordinary people are in disputes with bureaucrats empowered to write the rules under which they operate. Those nemeses include officials charged with dispensing government benefits, deciding whether immigrants can remain in the country, and enforcing the frequently arbitrary and petty restrictions inspired by COVID-19. Gorsuch also decries draconian prison sentences and mass incarceration, again illustrating how his supposedly right-wing instincts frequently overlap with progressive concerns. His compassion for people confronted by bewildering, absurdly punitive legal codes defies ideological stereotypes.”
“Northeast Asia undoubtedly benefited from capitalism (private profit-driven production), and
from access to the world market. To this extent the mainstream is correct. But five qualifications
have to be made.
First, for the first several decades the Northeast economies relied not so much on ‘the world
market’ as on ‘empire preference’ to the US market—and to US technologies, US capital, US
military and civilian aid, and US public procurement—thanks to their role in the US’s geopolitical
strategy to contain communism and show the world that ‘capitalism’ was superior to ‘communism’.
Second, the US’s threat perception, its commitment to getting front-line allies economically strong
enough to be a credible defence against communism, and its intense involvement in national
economic policy-making and institution building, kept the national elites relatively unified and not
at each other’s throats. So on the spectrum of ‘weak state/special interest state/common interest
state’ these were special interest states moving towards—with a lot of American help in the first
decades— common interest states.
Third, steered by a developmental mindset, the developmental state was organized differently than
the model neoliberal state. The latter has no strong centre of coordination (because markets played
by private capitalists, not states, are the resource coordinating institution), and has arms-length
relations between the various ministries and between ministries and business. The developmental
state has one or a few powerful centres of coordination and market leadership, a limited role for
the legislature in matters of economic, financial, and security policy, and well-developed
mechanisms of consultation and coordination with private capitalists, in the spirit of ‘embedded
autonomy’.
Fourth, these governments made intensive use of policies and institutions frowned upon in the
neoliberal playbook—such as managed trade, sectoral industrial policy (‘making, not picking,
willing winners’), targeted concessional credit, and capital controls. These instruments were
intended to buffer (not insulate) producers in selected sectors from international competitive
pressure and volatility—so profit-raising protection and subsidies came with performance
conditions, which were enforced. The whole complex would have scored poorly by Washington
Consensus criteria. For example, Taiwan’s financial system was and remains the despair of visiting
western economists. That being said, there is no knock-out evidence on the effects of these
‘government interventions’. The causality is too difficult to disentangle rigorously.
Fifth, from early on they undertook to develop domestic technological capacity, such as
engineering faculties at universities and public laboratories, to aggressively seek out western
technologies and domesticate them for deploying in national firms, and much later to undertake
world-standard innovation and attract back a high proportion of overseas graduate students—this,
rather than rely, as in much of Latin America, on incoming western multinational companies.
Singapore, as noted, did rely on western multinationals—which were left in no doubt as to who
called the shots”
There is an alliance of authoritarian countries that include Russia, China, Iran, and Venezuela. They don’t have ideology in common, but they want to maintain authoritarian power over their people. China’s reach doesn’t stay in Asia; they support the autocracy in Venezuela. Russia and Iran also support Venezuela’s dictatorship.
Iran, Russia, and China have illegitimate systems and their government’s fear that their own people will want a system more like America’s. They can never live in full harmony with the United States because the U.S. represents an internal threat to their regimes even when the U.S. does nothing other than stand as another possibility for their people. Therefore, they try to undermine the U.S. and democracy in general in whatever way they can.
“There’s a slight of hand when people declare the United States is a Christian nation. The nation was clearly founded on enlightenment principles that included freedom of religion and separation of church and state. These principles were put into the Constitution, and we know their meaning because we have the writings of the founders. At the same time, the country was a mostly Christian populace whose culture evolved from a Europe that had been Christian for many hundreds of years. Of course much of the ethos of such a society is going to be infused with Christian ideas, which themselves had been infused with Jewish, Roman, and Greek ideas. The country was and is majority Christian; in this sense it was a Christian nation. The country is and has always been heavily influenced by Christian culture, so also in that sense it is a Christian nation. But, at the nation’s founding, the founders explicitly created a government that was not supposed to implement Christianity upon its people, so in that sense it is not a Christian nation. As the country’s religious diversity grows, it becomes less of a Christian nation unless it can maintain some underlying Christian culture that goes beyond religious belief.”
“For Washington, the question that really matters is Ishiba’s approach to the military relationship with America.
Here Ishiba has sounded more disruptive than either the Japanese or U.S. establishment would like. He approached one third rail by calling for the revision of the agreement on the deployment of U.S. forces here. He went for another in wanting to amend the constitutional provisions on Japanese pacifism. He has talked about an Asian version of NATO, which would take Japan from a security vassal of the U.S. to a peer, though still a close ally.
“He could be a problem for the U.S.,” says Gerry Curtis, the retired Columbia scholar of Japan who lives much of the year here. “He thinks the deal with the U.S. is outdated, has an occupation stink to it.” Ishiba is, as one of the preeminent Japan watchers in Washington Ken Weinstein texted me, “hardest for Americans to read of the major candidates.”
So what’s going on? A Japanese official who knows Ishiba offered the 60/40 theory over lunch the day after Ishiba’s victory. Every other similar status of forces agreement with the U.S., from Germany to South Korea to Italy, was revised in the last half century. Japan’s dates to 1960. Ishiba wants a deal to allow Japanese forces to base and train in the U.S. — in effect to become even more like a normal army than a self defense force. Abe took Japan down this road, and Kishida continued by boosting spending (Japan’s defense budget is the third-biggest in the world). But neither of Ishiba’s predecessors put the status agreement explicitly on the table the way Ishiba has. So 60 percent of Ishiba’s motivation is “to enhance deterrence and strengthen the alliance,” this official said. The other 40 percent? That’s about “restoring Japanese sovereignty,” and that’s the bit that makes Washington nervous.
Speaking after this victory, Ishiba said the time wasn’t right to raise any of these security questions. This will be a topic of discussion with the next U.S. president and shouldn’t even be mentioned before Election Day in November.
The other topic that will test bilateral relations is America’s more protectionist trade policies under both Trump and Biden administrations and the high cost to Japanese manufacturers of enforcing the U.S.-inspired restrictions on technology transfers to China. “Japan is hurting right now because of American policies,” says Koll.
The new Japanese prime minister is “a realist,” says Hiro Akita, the Japanese business daily Nikkei’s foreign affairs specialist, who knows him. Ishiba thinks that Japan has to adjust to a changing world, he says. The next prime minister is no Japanese Charles de Gaulle who’ll seek to push America back as the old French leader did there half a century ago, he adds.
But still, this at first undramatic leadership change in Tokyo does potentially bring chop to the waters of the Japanese-American relationship that have been especially placid of late.”
“there are scenarios in which intentionally lying about a fire in a crowded theater and causing a stampede might lead to a disorderly conduct citation or similar charge.”
…
“Although the Supreme Court has never had the occasion to adjudicate an actual dispute involving a person yelling “fire” in a crowded theater, the Court did at least narrow its “clear and present danger test” in 1969, setting a higher standard for imminent incitement of lawless action.””
“You can’t yell fire in a crowded theater. I’m sure you’ve heard somebody say that before when discussing free speech and limitations on free speech and the First Amendment. Well, it’s actually one of the most widely misunderstood quotes in American law. It’s routinely parroted as the status of why there can be or are limitations on free speech, but it is a big fat myth. I will explain here in just a moment, so stick around.”
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“the interesting about it is the Schenck case wasn’t about fires, it wasn’t about theaters, it kind of wasn’t even about free speech. It was in a way, but it was really about a guy that was being charged with violations of the Espionage Act because he was a member of the socialist party and he was speaking out against the draft. And the other bizarre thing about why this quote gets attributed to why it’s okay to limit free speech is, the Schenck case, which has now actually been overturned and has been for like 60 years, actually stood for the exact opposite. The Schenck case was applying a pretty large degree of censorship on free speech. That’s why it was overturned is because it was actually found to be completely contrary toward what the First Amendment stood for.
So, the idea that you can’t yell fire in a crowded theater, Justice Holmes was using that as an analogy to simply say that free speech can’t go completely unchecked. And that idea has maintained it’s truth throughout the years. That’s still true. There are limitations on what is considered protected speech and what is not considered protected speech, and that’s a topic for a different video. But it’s just always been interesting to me that this quote, which is just dicta, it’s not the holding of the case, it’s not really the law of the land, and it’s not Justice Holmes saying that’s what the law of the land should be, has somehow withstood the test of time and is still, to this day”