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One of my favorite pieces of his writing was the "Programming Note" he wrote in June of this year, during/after the protests around George Floyd's death, and the Trump photo op in Lafayette Square. It has his usual insight into what really are the rules behind the rules, and what are the true incentives beneath the surface. It has some of that same sense of resignation, and even goes a bit into where that comes from. --- Programming note I don’t know. Mostly I am dazed and heartbroken all the time, and it
seems trivial and disrespectful to write a column about finance these
days. But this is a financial newsletter, and like a lot of my readers
I like having a mostly safe space for finance, so here we are. A theme of this column over the past few years has been legal realism,
the idea that “law,” really, is just what officials do about
disputes. Rules, the written laws, the constitution, are all “law”
only insofar as they predict or explain the actions of public
officials, or persuade those officials to do things. “That is all
their importance, except as pretty playthings,” as the great legal
realist Karl Llewellyn put it. If this column sometimes seems cynical,
it is mostly Karl Llewellyn’s fault. It seems to me that one central argument of the past few days has been
about whether people with power should have to follow rules at
all. America has good rules about freedom of speech and assembly and
religion; it has a president who violently dispersed a peaceful
protest and drove priests from their church so that he could pose for
photographs outside of it. America has good rules against unreasonable
searches and seizures, about the right to a trial by jury and due
process of law; it has a long history of police killing black people
with impunity. A message of the protests is that the police should have to follow the
same rules as everybody else, that when they break the law they should
face consequences. A message of the response to the protests is: No,
they shouldn’t. Is the law what it says? Or is it the raw fact of what
the people with the guns and the tear gas do? I think I know the
answer and it makes me sad. |