Month: January 2020

A major housing reform bill failed in California yesterday. Again.

The bill, SB 50, would have allowed denser housing construction near transit stops and job centers and would have legalized four-unit homes on almost all residential parcels statewide. The California Senate voted 18–15 in its favor, but the bill needed a majority, not just a plurality, of the 40-member Senate to pass. A number of lawmakers were absent or abstained, so the legislation is basically dead. (There’s a chance that it could be brought up for a second vote today, but that is very unlikely.)

This is the third year in a row that a version of this bill has failed to pass.

The arguments against SB 50 on the Senate floor were varied, with senators saying it would encourage building in wildfire zones, spur gentrification, take too much control from cities, and/or demonize owners of single-family homes.

Throughout the legislative process, the bill’s author, Sen. Scott Weiner (D–San Francisco), kept amending his legislation to appeal to his bill’s two biggest critics: local governments and “equity groups.” To appease the latter, developers benefiting from the bill’s upzoning provisions would have to rent out as many as 25 percent of the new units they’d build to low-income renters at below-market rates. Another provision in the bill would have delayed the bill’s effect for five years in “sensitive communities” and prevented the development of new apartments on land that hosted tenants in the last seven years.

In January, Wiener amended SB 50 again to create more flexibility for local governments. So long as they zoned for an equivalent amount of new housing, they wouldn’t have to follow the bill’s specific requirements about upzoning near transit and job centers.

That was enough to get a sizable number of local officials and local governments on board, including a lot of tightly zoned Silicon Valley suburbs. But Weiner failed to secure the support of a single Los Angeles–area senator. And equity advocates continued to give the legislation the cold shoulder. They argue that Wiener’s legislation, by allowing for the development of new market-rate housing, will only allow unaffordable luxury developments being built, doing nothing to help low-income renters.

Last week, a coalition of these organizations sent a letter to Wiener announcing their opposition to the bill. SB 50 “will exacerbate the housing challenges experienced by low-income people, people of color, and other vulnerable people,” they wrote.

The concern is understandable but misplaced. It is true that new market-rate buildings will be unaffordable to a majority of renters. But even expensive market-rate housing improves housing affordability for everyone. The more high-end apartments that are built, the fewer high-income earners will be going around bidding up the price of older, lower-rent units. That expands the number of moderately priced units available to people with incomes, helping to keep rents stable.

This process is known as filtering, and it is the foundation of the YIMBY argument for allowing the construction of more market-rate housing as a solution to California’s housing crisis.

Some affordable housing advocates, including many of SB 50’s critics, argue that the filtering process takes a long time and doesn’t ultimately help those at the bottom of the income ladder. Yet recent research suggests that filtering can have an almost immediate, positive effect on affordability. And if the pace of filtering is the problem, the solution is to allow even more market-rate development, speeding the process along.

from Latest – Reason.com https://ift.tt/2OdZSNr
via IFTTT

The verdict is in: The idea that America’s real founding was in 1619 does not wash. And yet, it will be considered a mark of sophistication to pretend otherwise.

Since last August, The New York Times has asked us to consider that America’s real founding was not in 1776 but in 1619, when the first Africans were brought to these shores. Nikole Hannah-Jones teaches that the Revolutionary War was fought mainly not to escape British tyranny, but out of fear that British tyranny was about to threaten the institution of slavery.

Stimulating proposition, but professional historians, as modern academics about as enlightened on issues of race and racism as any humans on the planet, have politely but firmly declared that the facts simply do not bear out this take on our nation’s founding. Gordon Wood and others wrote careful and authoritative pieces to this effect, and more recently Sean Wilentz has penned a careful response to the inevitable pushback. Unless fact is not fact, unless documentation is forgery, no unbiased observer could read Wilentz here as partisan or as even swayed by subconscious racism.

After the first round of criticisms, we were invited to recall the early 20th century Dunning School of academic history—named after one William Archibald Dunning, a man with no purchase at all upon modern consciousness—that decried Reconstruction as a desecration of a noble South. Okay, we shall recall it. I am dutifully recalling it now as I write. It sucked. But in the here and now, when the Dunning School adherents are long gone, Hannah-Jones’ analysis is wrong, tout court.

Crucially, however, we can be quite sure that no one connected to The 1619 Project will admit that. Already, the Times stated that it would not revise the basic claims after the first letter of critique. Meanwhile, while none of us have crystal balls, it is distinctly difficult to imagine Hannah-Jones or anyone else simply admitting that they got the history wrong—especially as podcasts and teaching materials based on the 1619 perspective are now being distributed for the delectation of the nation at large.

The 1619 idea is already set, then, as a meme. We can be sure from here on it will be treated as a mark of enlightenment to ever “consider” that America at least “could” be supposed to have begun in 1619, roughly, “because slavery.” This chardonnay wisdom will be considered as unquestionable in polite society as climate change—despite the fact that unlike climate change, the 1619 idea is not supported by empirical evidence.

The problem here is the general assumption that on race issues, empiricism is but one pathway to the truth, with a larger goal being to identify and revile racism in all of its facets, a goal so paramount that where necessary, we are to elide fact and consider instead what we might call—especially à propos the 1619 case—a narrative.

* * *

Only this perspective can explain how serenely professional historians’ takedown of The 1619 Project will be ignored. Of late, social justice warrior ideology has been deemed a new religion by many writers, Vox writer Matthew Yglesias’ term “The Great Awokening” being especially apt. The 1619 idea is an almost uncanny embodiment of this new way of thinking.

For one, note the suspension of disbelief we are expected to maintain. Supposedly the Founding Fathers were trying to protect slavery, despite never actually making such a goal clear for the historical record, and at a time when there would have been no shame in doing so. What are the chances that this supposed revelation would have slept undiscovered until now, when for almost 50 years, humanities academics of all colors have been committed to their socks to unearthing racism in the American fabric? Can we really believe that a group of journalists writing for the Times has unboxed such a key historical revelation from reading around, that no one else of any color has chosen to trumpet in the mainstream media for decades?

Hogwash, clearly. And yet it will be considered the height of insolence to address the decisive historical observations of historians like Wilentz. Here and only here, serious academic chops don’t matter. We are to think of a broader goal—endlessly and liturgically attesting to the racism that black people have suffered from—as licensing a fantastical way of thinking. People like Wilentz will be classified as nattering nuisances who just don’t “get it,” callously prizing the literal over what is “deeper,” as if they were requiring that someone today walk on water before subscribing to Christianity. That is, people who insist on the truth will be classified as blasphemers.

Then, the parallel with Christianity seems almost deliberate in that the 1619 idea lends the American story an original sin. Already, the Great Awokening’s emphasis on white privilege has constituted such a concept on the level of the individual. As even children are now often inculcated in the concept, we have a substitute for the idea that we are born stained, and always will be. One can only endlessly “testify” to the stain throughout life, in hopes of being “saved” at some point in prosperity—Christianity calls it Judgment Day, anti-racism terms it “When America Gets Past Race.”

But now we have a true Genesis-style scenario under which, at the very outset, a ship brings Africans to this land in 1619 and everything that happens here afterward is rooted in the unjustifiable bondage of those human beings and what was connected to it. Now, not only does the American individual harbor the original sin of being born privileged, but America itself is a product of a grand original sin, permeating the entire physical, sociological, and psychological fabric of the nation, to an extent no one could ever hope to undo, and for which any apology would be insufficient to the point of irrelevance.

* * *

The air of the epic, the mythical, here is not an accident. Among people without writing, history is preserved orally, in epics where the line between fact and legend is porous. This is because when there is no writing available to preserve insignificant details such as what Franklin Pierce’s wife’s name was, history is approached in a utilitarian fashion, to inspire and counsel living people about matters of urgency in their current lives. The 1619 idea, presented as enlightenment, is actually a rejection of history in favor of what we might call lore.

The attraction of something that seems so atavistic is that the 1619 myth will feel, like so many legends do worldwide, useful. Black Americans were treated like animals for centuries and then subjected to Jim Crow. It would be surprising if the race’s self-image was not damaged by this history. As such, the 1619 idea joins many others in bolstering the black American soul with the substitute pride of noble victimhood. If you are a member of a race whose subjugation is part of the very DNA of the nation, it renders anything one does well a kind of victory snatched from the jaws of defeat (if only at generations’ remove) and in general lends one a way of feeling significant, distinct, special.

Whites, in the meantime, seek absolution from the acrid charge of being racists. One way to do so is to concur with and support not only anti-racist policies and ideas, but ideology even when it slips the bounds of logic. One learns not to question, this often phrased as “I can’t know what they go through.” Hence, 1619 becomes truth.

Some might wonder what’s wrong with a little bit of mythology in our historical conceptions, or with even a little bit of mythology in how we process the present. “Let us tell our own story,” we will hear—with a sense that there is something small in asking any real questions. And indeed, there are times when we must allow basal responses their space.

For example, a major wellspring of today’s comfort with treating race issues as fables is the O.J. Simpson media circus. Here, not just the intelligentsia but a great many black people beyond it studiously refused to acknowledge the rather plain evidence that Simpson murdered two people. In the present tense this was irritating to many (including me). However, with more perspective—which I gradually came to understand—few could fail to sympathize at least somewhat with the fact that the acquittal of Simpson was processed as vigilante justice after how Los Angeles black people had suffered at the hands of the police for eons.

A line from film director John Ford’s The Man Who Shot Liberty Valance advised “When the legend becomes fact, print the legend,” and in selected cases, maybe we should. But the 1619 business is not one of them.

* * *

For example, amid the superficial satisfactions—and that is what they are—of casting America as a grand original sin, what is the actual purpose of teaching young people that a grievous injustice against black people is the very warp and woof of our polity? What is the endgame? In which way will an America in thrall to this conception be better?

Surely, non-black people will feel a little guiltier about “the black thing,” and internalize a reluctance to assign black people true culpability out of a sense that “they” have been through too much to be expected to perform at the level of other people. Few things more crisply demonstrate that the Civil Rights revolution has gone off the rails than that so many smart black people actually see this condescending poster child status as civic improvement.

Meanwhile, black people will internalize an even deeper sense that America is not great and doesn’t like them, in the only country they will ever know. We are now to instruct black kids just a few years past diapers in this way of thinking—in studied despair over events far in the past, and a sense that it is more enlightened to think of yourself as a victim than as an actor. At no other point in human history have any people, under any degree of oppression, conceived of this kind of self-image as healthy—and no one could effectively argue that they were missing something that we have just figured out.

Another problem: There was a time when you could print the legend and after a short time it was hard to unearth what the truth had been. The Tawana Brawley hoax in 1987 was one of those legends, and for some years afterward, to learn the truth beyond its announcement mostly in the New York area during a news cycle or two required trawling microfilm or spending time in a big library paging through old bound magazines.

These days, however, the truth on these matters will always be easily available. Anyone will always be able to read the truth about 1619 on their phones instantly—and legions of teenagers and beyond will do so. Just as people might come to question Sunday school catechism as they mature, the 1619 scripture will be something fed to young people who will easily find out later that it wasn’t real by just reading around a bit. Again, how will that be an improvement over now?

* * *

The insistence on maintaining the 1619 idea is rooted in a pervasive modern notion that when evaluating race issues, it is a form of intelligence and morality to duck truth when it is inconvenient to a victimhood-focused construct. W.E.B. Du Bois tackled the Dunning School with facts; today people sensing themselves as his heirs insist we accept alternative facts. Yet, to point out that neither Du Bois, Frederick Douglass, nor Martin Luther King Jr. would see this as progress renders one a heretic. This is one more thing we must overcome.

from Latest – Reason.com https://ift.tt/37KdUxO
via IFTTT

Jeanine Cummins’ novel American Dirt depicts the migrant crisis from the perspective of a Mexican woman feeling cartel violence. But the book has so infuriated its target audience—immigration-sympathetic liberals—that its publisher has canceled the rest of Cummins’ book tour, ostensibly due to “safety concerns.”

The kerfuffle hasn’t hurt book sales. On the contrary, American Dirt is expected to debut as a number one fiction bestseller, thanks in part to Oprah’s endorsement. Controversies can be very beneficial in the world of publishing, and part of me wonders whether the publisher is overhyping the safety concerns in order to make the book seem more taboo, and thus a must-buy.

That said, it’s certainly the case that American Dirt has received tons of negative coverage—not from the sort of Trump-supporting anti-immigrant people who might be expected to object to the story’s ideology, but from liberals who think Cummins is engaged in cultural appropriation. Cummins is white—though she has claimed a Puerto Rican grandmother—and stands accused of writing about peoples and cultures to which she does not belong.

“The asymmetry of Cummins’s identity (she’s white and not an immigrant) and story (a Mexican woman’s flight to the United States with her son) has led to charges of racial and cultural appropriation and publishing-industry whitewashing,” notes The Atlantic‘s Randy Boyagoda. “Making matters worse, the novel is a commercial success: It won a seven-figure advance and was optioned for a film adaptation amid broader industry buzz, and it’s an Oprah Book Club selection….This is fundamentally a fight about an industry; it’s about how book publishers do business, and with whom.”

“Cummins plops overly-ripe Mexican stereotypes, among them the Latin lover, the suffering mother, and the stoic manchild, into her wannabe realist prose,” Myriam Gurba writes in her review. “Toxic heteroromanticism gives the sludge an arc and because the white gaze taints her prose, Cummins positions the United States of America as a magnetic sanctuary, a beacon toward which the story’s chronology chugs.”

Gurba also balked at Cummins’s stated intention, which was to move beyond the portrayal of Mexican migrants as a “faceless brown mass” and instead “give these people a face.” The use of the phrase these people was apparently anathema to her.

I’m singling out Gurba’s review because it’s a good representation: It contains both reasonable criticisms and a blind rage that a white author would dare to write a book about Mexican people—and declare her sympathy for them using language that falls short of what the most woke Latinx activist would prefer.

In any case, the tour might be canceled, but the book is not. If anything, it’s benefiting from the controversy.

from Latest – Reason.com https://ift.tt/2taefLe
via IFTTT

Tuesday, the Fifth Circuit denied rehearing en banc in Doe v. Mckesson, the tort case stemming from a Black Lives Matter protest, but with three interesting separate opinions. (The en banc vote was as close as it could be—an 8-8 tie, which goes against the petitioner.) First, Judge James Ho’s concurrence, which I think is quite right:

[A.] Police officers and firefighters dedicate their lives to protecting others, often putting themselves in harm’s way. These are difficult and dangerous jobs, and citizens owe a debt of gratitude to those who are willing and able to perform them. What’s more, police officers and firefighters assume the risk that they may be injured in the line of duty. So they are not allowed to recover damages from those responsible for their injuries, under a common law rule known as the professional rescuer doctrine.

“The professional rescuer doctrine, the fireman’s rule, is a common law rule that either bars recovery by a professional rescuer injured in responding to an emergency or requires the rescuer to prove a higher degree of culpability in order to recover.” Gallup v. Exxon Corp. (5th Cir. 2003) (collecting Louisiana cases). “The Professional Rescuer’s Doctrine is a jurisprudential rule that essentially states that a professional rescuer, such as a fireman or a policeman, who is injured in the performance of his duties, ‘assumes the risk’ of such an injury and is not entitled to damages”—particularly when the “risks arise from the very emergency that the professional rescuer was hired to remedy.” Gann v. Matthews (La. Ct. App. 2004).

This doctrine would seem to require immediate dismissal of this suit. After all, there is no dispute that the officer was seriously injured in the line of duty—specifically, while policing a Black Lives Matter protest that unlawfully obstructed a public highway and then turned violent. The officer deserves our profound thanks, sympathy, and respect. But his case would appear to fall squarely within the scope of the doctrine.

None of the panel opinions in this case addressed the professional rescuer doctrine, however—presumably because Mckesson never raised it. I imagine that, if given the chance on remand, he will invoke the doctrine at last, and that the district court will terminate this suit (again) accordingly.

Had Mckesson raised this doctrine at an earlier stage in the suit, there would have been no need to answer the more challenging First Amendment questions that now animate his petition for rehearing en banc. But he did not. So, like the panel, I turn to those questions now.

[B.] Because Mckesson has thus far neglected to invoke the professional rescuer doctrine, the panel confronted novel and interesting First Amendment issues that are arguably worthy of rehearing en banc. But I take some comfort in the fact that, upon closer review of the panel opinions, the constitutional concerns that have generated the most alarm may not be as serious as feared.

The First Amendment indisputably protects the right of every American to condemn police misconduct. And that protection secures the citizen protestor against not only criminal penalty, but civil liability as well. See, e.g., NAACP v. Claiborne Hardware Co. (1982).

But there are important differences between the theory of liability held invalid in Claiborne Hardware and the tort liability permitted by the panel majority here. In Claiborne Hardware, the defendants were sued for leading a boycott of white merchants. State courts subsequently held the defendants liable for all of the economic damages caused by their boycott.

Notably, the theory of liability rejected in Claiborne Hardware was inherently premised on the content of expressive activity. If the defendants had advocated in favor of the white merchants, no court would have held them liable for such speech. So the tort liability theory adopted by the state courts necessarily turned on the content of the defendants’ expressive activities. And the Supreme Court rejected this content-based theory of liability as a violation of the First Amendment. See, e.g., id. (“[T]he petitioners certainly foresaw—and directly intended—that the merchants would sustain economic injury as a result of their campaign. … [But t]he right of the States to regulate economic activity could not justify a complete prohibition against a nonviolent, politically motivated boycott designed to force governmental and economic change and to effectuate rights guaranteed by the Constitution itself.”).

By contrast, the theory of liability adopted in this case appears to be neutral as to the content of the Black Lives Matter protest. Unlike Claiborne Hardware, liability here turns not on the content of the expressive activity, but on the unlawful obstruction of the public highway and the injuries that foreseeably resulted. This is an important distinction. As Claiborne Hardware itself observed: “While the State legitimately may impose damages for the consequences of violent conduct, it may not award compensation for the consequences of nonviolent, protected activity.” “Only those losses proximately caused by unlawful conduct may be recovered.”

So in sum: Content-based damages are generally impermissible, as Claiborne Hardware illustrates. But content-neutral rules typically survive First Amendment challenge. See, e.g., Ward v. Rock Against Racism (1989) (“Our cases make clear … that even in a public forum the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions ‘are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.’ “) (collecting cases).

Applying that framework here, I do not understand the panel majority to suggest that Mckesson may be held liable for lawfully protesting police—that would be a textbook violation of established First Amendment doctrine, including Claiborne Hardware—but rather for injuries following the unlawful obstruction of a public highway. As the panel explained, “the criminal conduct allegedly ordered by Mckesson was not itself protected by the First Amendment, as Mckesson ordered the demonstrators to violate a reasonable time, place, and manner restriction by blocking the public highway. As such, no First Amendment protected activity is suppressed by allowing the consequences of Mckesson’s conduct to be addressed by state tort law.” In the face of such limiting language, any First Amendment concern about the potential reach of the panel majority opinion strikes me as uncertain and speculative.

So if I understand the panel majority’s theory of liability correctly, it may be expansive—and it may be wrong as a matter of Louisiana law, as Judge Higginson’s typically thoughtful dissent suggests. But it applies with equal force to pro-police protestors (just as it would, say, to pro-life and pro-choice protestors alike) who unlawfully obstruct a public highway and then break out into violence. It is far from obvious, then, that the First Amendment principles articulated in Claiborne Hardware would have any bearing here (and we do not ordinarily grant en banc rehearing to resolve questions of state law).

[C.] Civil disobedience enjoys a rich tradition in our nation’s history. But there is a difference between civil disobedience—and civil disobedience without consequence. Citizens may protest. But by protesting, the citizen does not suddenly gain immunity to violate traffic rules or other laws that the rest of us are required to follow. The First Amendment protects protest, not trespass.

That said, this lawsuit should not proceed for an entirely different reason—the professional rescuer doctrine. I trust the district court will faithfully apply that doctrine if and when Mckesson invokes it, and dismiss the suit on remand, just as it did before. It is for that reason that I am comfortable concurring in the denial of rehearing en banc.

Judge James Dennis, joined by Judge James Graves, dissented:

I respectfully dissent from the court’s refusal to rehear en banc a 2–1 panel opinion that not only misapplies Louisiana’s duty-risk analysis, as Judge Higginson’s dissent points out, but also fails to uphold the clearly established First Amendment principles enshrined in NAACP v. Claiborne Hardware Co. Claiborne Hardware reaffirmed this country’s “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” Thus, when violence or threats of violence “occur[ ] in the context of constitutionally protected activity, … precision of regulation is demanded,” including an inquiry into whether the defendant “authorized, ratified, or directly threatened acts of violence.” The panel majority demands no such precision. Instead, it appears to apply a free-wheeling form of strict liability having no resemblance to Louisiana law’s careful duty-risk analysis, concluding that, because of his association with the demonstrators or his failure to anticipate and prevent the rock throwing incident, Mckesson can be held liable—despite the First Amendment protection historically afforded protest activity—for the acts of a “mystery attacker.”

The majority of our colleagues have thus grievously failed to do what should have been done: Take up this case, apply the longstanding protections of the First Amendment, and conclude, as the district court did, that Doe’s lawsuit against DeRay Mckesson should be dismissed.

Judge Stephen Higginson, joined by Judge Dennis, also dissented:

The panel opinion holds that the First Amendment affords no protection to McKesson because he was negligent under Louisiana law. I do not believe the Louisiana Supreme Court would recognize a negligence claim in this situation. When a negligence claim is based on the violation of a statute, Louisiana courts allow recovery only if the plaintiff’s injury falls within “the scope of protection intended by the legislature.” An assault on a police officer by a third-party is not the “particular risk” addressed by the highway obstruction statute. Absent the breach of this statutory duty, it is unclear on what basis the panel opinion finds that the protest was foreseeably violent.

To the extent that the panel opinion creates a new Louisiana tort duty, this is “a policy decision” for Louisiana courts—not this court—to make. Even if we could make this policy decision ourselves, the panel opinion does not weigh the “moral, social, and economic factors” the Louisiana Supreme Court has identified as relevant, including “the nature of defendant’s activity” and “the historical development of precedent.”

In light of the vital First Amendment concerns at stake, I respectfully suggest that these considerations counsel against our court recognizing a new Louisiana state law negligence duty here, at least in a case where argument from counsel has not been received. Protestors of all types and causes have been blocking streets in Louisiana for decades without Louisiana courts recognizing any similar claim.

Very interesting stuff, and I’m sure it will be read by the Supreme Court in deciding whether to hear the case. For my thinking on this, see these posts:

1. The Weird Litigation Posture of the Doe v. Mckesson / Baton Rouge Black Lives Matter Protest Case, which deals with the professional rescuer doctrine.
2. Negligence Claims Brought Against Protest Organizers: More on the Tort Law Side of Doe v. Mckesson, which discusses why (apart from the professional rescuer doctrine) the tort law theory behind the case is plausible.
3. When Does First Amendment Preempt Negligence Liability?, which generally argues for the content-based / content-neutral distinction that Judge Ho’s opinion discusses.

from Latest – Reason.com https://ift.tt/2RGoT63
via IFTTT