Diary Australia

New York diary

22 April 2017

9:00 AM

22 April 2017

9:00 AM

The Brexit symposium

I am here in New York City thanks to New York University, and in particular to the Classical Liberal Institute that is an autonomous offshoot of its Law School.They picked up the costs of the charming 1920s hotel in Greenwich Village; they covered meals for three days; and the flights (and note all you overpaid Australian university bureaucrats and politicians, all flights are economy class, as they should be unless you’re spending your own money). And not just for me, but for some dozen other law professors from across the Anglosphere: NZ, Canada, the US and UK. We’re all here in the Big Apple for a symposium on Brexit, with a top US law journal later publishing the papers. Because it’s Easter some contributors to that volume can’t be here, people like Roger Scruton. But how did this all come about? It was a fluke.

Back right after the Brexit vote last year I was emailing with two law professor friends, one in the US and one a Brit. All three of us were staunch Brexiteers celebrating the result. In the course of our correspondence we tried to come up with the names of a half dozen other well-published law professors anywhere in the Anglosphere who were ‘Leavers’. We couldn’t do it, not confidently. Then I mooted trying to find a law review that would run a special issue on Brexit, with at least a preponderance of the papers being for Brexit. But that was a non-starter in the UK, where being for Brexit in a law faculty is, shall we say, ‘brave’.

But with some work we found a good US law review that liked the idea. Then the three of us wondered about getting the contributors to that volume to come to a symposium to talk about their papers. We got Richard Epstein now of NYU on board and from there he pulled in private money – not a penny of this symposium was funded by NYU law school itself, though it provided absolutely beautiful venues – and our initial idea expanded.


Yes, we’d aim to bring together top ‘Leave’ and ‘Remain’ law profs, but Epstein would also get some economists involved. In the end it was a largely US and UK dominated event. But my Lord it was fascinating. And it also would be the only time ever, I can assure you, that at an academic event the ‘Leavers’ slightly outnumbered the ‘Remainers’. This was a jarring experience for the latter. And once or twice during this wonderful symposium things got a bit heated. But it was terrific, absolutely superb, most definitely including the socialising and conversations at the dinners at the end of each day.

Here are a few of the take-away points from my perspective. Firstly, the economists were on average more optimistic of how Brexit would play out than the law profs, though this might be a function of the fact the economists at this event were very much pro-free market types and also reflects the fact that law prof ‘Remainers’ could not possibly be more pessimistic or despairing. Secondly, even top-level Oxford and US law professors who are Remainers concede, when pushed, that their attachment to the European Union is not just due to what they see as likely future bad consequences. For them Brexit is a repudiation of a sort of higher, more noble, supranational undertaking. To me it sounds like a sort of pseudo-religious commitment; to them it is being part of a Whig-like ‘right side of history’ movement. The Brexiteers have broken faith with the tide of history, in their view. Thirdly, it is plain that lawyers and members of the UK elite are not reconciled to ‘Leave’ and will do all they can to try to frustrate Brexit in the next two years, most especially after any detailed repeal of the 1972 European Communities Act is made public. Expect a lot more court challenges. Expect the use of every avenue available to try to frustrate the UK’s departure from the EU. Fourthly, the issue of principals and agents came up. What is in the interests of the two can diverge. So the top civil servants negotiating this divorce, on both the EU and UK sides, have a lot more self-interest in frustrating an amicable divorce and good free trade outcome, than do the UK government, or the German and French governments, or even the EU itself. Think of what would be good for you as a top civil servant or functionary who has a very good life in Brussels, now and in the future. The good life you’re enjoying is tied to the EU carrying on in more or less its present form. Put differently, your interests as agent may differ noticeably to those of the voters in Poland or Germany. Or if you’re an agent for the UK government, then they can vary significantly from the interests of the UK people.

One world class economist was of the opinion that Theresa May should fire, or at least move to some other job, all the top British civil servants who have ever had anything to do with the EU. They have little incentive to make Brexit work. This economist was, to my mind, very convincing.

On a cheerier note, this is only my third time ever to NYC, which is a bit odd for a native-born Canadian. I was here for a weekend 25 years ago, and again after 9/11 when there was just a huge hole in the ground near the bottom tip of Manhattan. So on the day after the conference ended I walked down to the new memorial for 9/11. It is very good and moving indeed. If you haven’t seen it, you really must go next time you’re in New York.

The other thing that hits you right away about the Big Apple, or at least the part around Greenwich Village where I was, is that this is the most anti-Donald Trump part of the US imaginable – with the possible exception of downtown San Francisco. In four days, I was asked on the streets to sign at least six anti-Trump petitions, all of them just exercises in virtue-signalling. And you could have polled the first 100 random people you saw on any day and if you got more than three to admit, openly, to being Trump supporters then I can assure you that by chance you stumbled on tourists from the Midwest or Arkansas. They talk endlessly about diversity here in Manhattan. But they don’t seem to see that they live amongst the most monolithic, like-minded crowd of people just about anywhere on the planet.

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