Month: October 2022

Will Sackett v. EPA Clarify the Scope of Federal Regulatory Jurisdiction Over Wetlands?


52327630835_9f3a2a4b6b_o

On Monday, the first day of the new Supreme Court term, the justices will hear oral argument in Sackett v. Environmental Protection Agency, in which the Sacketts are challenging the EPA’s authority to regulate the use of their land under the Clean Water Act. Specifically, the Court will consider how courts should determine whether a given parcel is subject to regulation under the Clean Water Act (CWA) as a part of the “waters of the United States.” The resulting decision could have dramatic implications for the scope of federal wetland regulation.

If the case name Sackett v. EPA sounds familiar, that is because it should. Ten years ago, the Supreme Court heard another case with that same name, involving the same litigants, and the same Idaho property. In the first Sackett case, the issue was whether the landowners could obtain judicial review of an EPA administrative compliance order, directing them to restore their property or face ruinous financial penalties. The Court ruled unanimously for the Sacketts, recognizing the profoundly unjust nature of the EPA’s position. This time around, the question is whether the EPA has authority to regulate the Sacketts at all.

The precise question before the Court is whether the court below (in this case, the U.S. Court of Appeals for the Ninth Circuit) applied the proper standard when it concluded that the Sacketts’ property contained wetlands, subject to regulation as part of the “waters of the United States,” subject to regulation under the CWA. (I discussed the Ninth Circuit’s decision here.)

The reason there is some uncertainty about the proper test is because the last time the Court considered this question, in Rapanos v. United States, the Court splintered 4-1-4. While a majority of the Court concluded that the federal government’s was asserting regulatory authority beyond that which the CWA authorizes (as they had in SWANCC v. U.S. Army Corps), the majority could not agree on the proper test. Justice Scalia (joined by three other justices) concluded that “waters of the United States” only covered those waters and wetlands connected to navigable waters through a relatively continuous surface-water connection. Justice Kennedy, on the other hand, thought the proper test was to determine whether a given water or wetland has a “significant nexus” to waters of the United States.

In the current case, the Sacketts are asking the Court to embrace a test based upon Justice Scalia’s Rapanos plurality. Such a test, they argue, is more consistent with the CWA’s text, and ensures that federal regulation does not extend beyond the scope of Congress’s power to regulate commerce among the several states (which is the purported basis for the CWA’s regulations).

The Solicitor General, on the other hand, is asking the Court to embrace Justice Kennedy’s concurrence. This latter position is itself notable, as the federal government seems to have abandoned the less bounded conception of federal regulatory authority it had pushed in Rapanos and SWANCC, and which had commanded the support of the Court’s liberal justices in those prior cases. This is also notable because the Obama Administration had sought to define “waters of the United States” in a more expansive fashion, and reaffirms the impression that the Biden Administration is adopting a more restrained approach.

Should the Sacketts prevail, the EPA and Army Corps of Engineers will have greater difficulty asserting regulatory authority over properties that are not clearly connected to waters that are themselves connected to navigable waters. This would meant that a significant portion of the nation’s wetlands would no longer be subject to federal regulatory control, though state governments would be free to adopt more expansive regulations, and federal agencies could still pursue wetland conservation through other means (such as through fiscal measures, land acquisition, and incentive programs).

Should the Court’s decision provide greater certainty about the outer limits of federal regulatory authority, this would help clarify where federal authority ends and exclusive state regulatory authority begins. This would put the onus on state governments to adopt conservation measures within their jurisdiction, but would also make it easier for states to act.

Whether states would fill the conservation void is an interesting question. At present, half the states already protect wetlands and waters more broadly than does the federal government. The other half do not, and some have existing laws that constrain state agencies from adopting measures more stringently than federal law.  Whether state legislatures would reform such laws is unclear, but it is interesting to note that State and local wetland regulation began a decade before wetlands were regulated under the CWA, and the pattern of state wetland regulation was the opposite of that predicted by “race to the bottom” theory (in that those states that would have been predicted to regulate last and least actually regulated first and most aggressively). (I surveyed this history in this article from 1999.)

Should the Sacketts prevail, another important question will be how a narrowing of “waters of the United States” affects the EPA’s ability to enforce the CWA’s traditional pollution-control provisions. The definition of “waters of the United States” will apply to the entire Act, but the EPA may retain broader authority to regulate traditional polluting activities on lands not otherwise subject to CWA jurisdiction given the Court’s prior holding in County of Maui v. Hawai’i Wildlife Federation. As Robin Kundis Craig suggests , even if a given parcel (such as the Sackett’s property) is not part of the “waters of the United States,” activities on that parcel that result in pollution reaching regulated waters could be sufficient to subject such activities to federal regulation. In other words, a Sackett victory could deregulate wetland development at the federal level without deregulating much traditional water pollution control.

As some readers may know, the scope of federal regulatory jurisdiction has been a longstanding subject of interest for me, and I have published multiple papers on the subject.  I will have more to say about the case after Monday’s oral argument. In the meantime, those interested in learning more about the case and the issues involved should check out this webinar on Sackett sponsored by the Coleman P. Burke Center for Environmental Law at the Case Western Reserve University School of Law, featuring Professor Royal Gardner of Stetson and Jonathan Wood of PERC.

For those interested in my prior writings on the subject, here are a few:

The post Will Sackett v. EPA Clarify the Scope of Federal Regulatory Jurisdiction Over Wetlands? appeared first on Reason.com.

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Will Sackett v. EPA Clarify the Scope of Federal Regulatory Jurisdiction Over Wetlands?


52327630835_9f3a2a4b6b_o

On Monday, the first day of the new Supreme Court term, the justices will hear oral argument in Sackett v. Environmental Protection Agency, in which the Sacketts are challenging the EPA’s authority to regulate the use of their land under the Clean Water Act. Specifically, the Court will consider how courts should determine whether a given parcel is subject to regulation under the Clean Water Act (CWA) as a part of the “waters of the United States.” The resulting decision could have dramatic implications for the scope of federal wetland regulation.

If the case name Sackett v. EPA sounds familiar, that is because it should. Ten years ago, the Supreme Court heard another case with that same name, involving the same litigants, and the same Idaho property. In the first Sackett case, the issue was whether the landowners could obtain judicial review of an EPA administrative compliance order, directing them to restore their property or face ruinous financial penalties. The Court ruled unanimously for the Sacketts, recognizing the profoundly unjust nature of the EPA’s position. This time around, the question is whether the EPA has authority to regulate the Sacketts at all.

The precise question before the Court is whether the court below (in this case, the U.S. Court of Appeals for the Ninth Circuit) applied the proper standard when it concluded that the Sacketts’ property contained wetlands, subject to regulation as part of the “waters of the United States,” subject to regulation under the CWA. (I discussed the Ninth Circuit’s decision here.)

The reason there is some uncertainty about the proper test is because the last time the Court considered this question, in Rapanos v. United States, the Court splintered 4-1-4. While a majority of the Court concluded that the federal government’s was asserting regulatory authority beyond that which the CWA authorizes (as they had in SWANCC v. U.S. Army Corps), the majority could not agree on the proper test. Justice Scalia (joined by three other justices) concluded that “waters of the United States” only covered those waters and wetlands connected to navigable waters through a relatively continuous surface-water connection. Justice Kennedy, on the other hand, thought the proper test was to determine whether a given water or wetland has a “significant nexus” to waters of the United States.

In the current case, the Sacketts are asking the Court to embrace a test based upon Justice Scalia’s Rapanos plurality. Such a test, they argue, is more consistent with the CWA’s text, and ensures that federal regulation does not extend beyond the scope of Congress’s power to regulate commerce among the several states (which is the purported basis for the CWA’s regulations).

The Solicitor General, on the other hand, is asking the Court to embrace Justice Kennedy’s concurrence. This latter position is itself notable, as the federal government seems to have abandoned the less bounded conception of federal regulatory authority it had pushed in Rapanos and SWANCC, and which had commanded the support of the Court’s liberal justices in those prior cases. This is also notable because the Obama Administration had sought to define “waters of the United States” in a more expansive fashion, and reaffirms the impression that the Biden Administration is adopting a more restrained approach.

Should the Sacketts prevail, the EPA and Army Corps of Engineers will have greater difficulty asserting regulatory authority over properties that are not clearly connected to waters that are themselves connected to navigable waters. This would meant that a significant portion of the nation’s wetlands would no longer be subject to federal regulatory control, though state governments would be free to adopt more expansive regulations, and federal agencies could still pursue wetland conservation through other means (such as through fiscal measures, land acquisition, and incentive programs).

Should the Court’s decision provide greater certainty about the outer limits of federal regulatory authority, this would help clarify where federal authority ends and exclusive state regulatory authority begins. This would put the onus on state governments to adopt conservation measures within their jurisdiction, but would also make it easier for states to act.

Whether states would fill the conservation void is an interesting question. At present, half the states already protect wetlands and waters more broadly than does the federal government. The other half do not, and some have existing laws that constrain state agencies from adopting measures more stringently than federal law.  Whether state legislatures would reform such laws is unclear, but it is interesting to note that State and local wetland regulation began a decade before wetlands were regulated under the CWA, and the pattern of state wetland regulation was the opposite of that predicted by “race to the bottom” theory (in that those states that would have been predicted to regulate last and least actually regulated first and most aggressively). (I surveyed this history in this article from 1999.)

Should the Sacketts prevail, another important question will be how a narrowing of “waters of the United States” affects the EPA’s ability to enforce the CWA’s traditional pollution-control provisions. The definition of “waters of the United States” will apply to the entire Act, but the EPA may retain broader authority to regulate traditional polluting activities on lands not otherwise subject to CWA jurisdiction given the Court’s prior holding in County of Maui v. Hawai’i Wildlife Federation. As Robin Kundis Craig suggests , even if a given parcel (such as the Sackett’s property) is not part of the “waters of the United States,” activities on that parcel that result in pollution reaching regulated waters could be sufficient to subject such activities to federal regulation. In other words, a Sackett victory could deregulate wetland development at the federal level without deregulating much traditional water pollution control.

As some readers may know, the scope of federal regulatory jurisdiction has been a longstanding subject of interest for me, and I have published multiple papers on the subject.  I will have more to say about the case after Monday’s oral argument. In the meantime, those interested in learning more about the case and the issues involved should check out this webinar on Sackett sponsored by the Coleman P. Burke Center for Environmental Law at the Case Western Reserve University School of Law, featuring Professor Royal Gardner of Stetson and Jonathan Wood of PERC.

For those interested in my prior writings on the subject, here are a few:

The post Will Sackett v. EPA Clarify the Scope of Federal Regulatory Jurisdiction Over Wetlands? appeared first on Reason.com.

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Deepfake Bruce Willis To Return To Movie Screens

Deepfake Bruce Willis To Return To Movie Screens

Bruce Willis retired from acting following a diagnosis of aphasia, which causes a person to have difficulty communicating with others, but a “digital twin” of the American actor using deepfake technology will live on in future films and commercials. 

The Telegraph reported Willis is the “first Hollywood star” to sell the rights of his digital twin in perpetuity. The actor will license his digital rights through a company called Deekcake, which specializes in artificial intelligence. 

In a statement on Deepcake’s website, Willis said:

“I liked the precision with which my character turned out. It’s a mini-movie in my usual action-comedy genre. For me, it is a great opportunity to go back in time.

“With the advent of modern technology, even when I was on another continent, I was able to communicate, work and participate in the filming. It’s a very new and interesting experience, and I thank our entire team.”

Deepcake’s website said, “We make digital twins of people you won’t tell from real.” They added this technology is very disrupting to the film industry: 

We create digital-twins of celebrities, and the actual production process doesn’t require the physical presence of a celebrity on stage. Deepcake is only team able to make digital twin in 4K quality, On top, we can hyper-personalize your brand’s message, and jump on arena of performance marketing with A-List celebrities

Engadget said Deepcake’s engineers created the digital double by training its AI platform to study the actor’s face in several past films, including Die Hard and Fifth Element. Then the AI grafted Willis’ face on another actor.

Willis’ digital twin has already appeared in a commercial for a Russian telecoms company.

There are concerns deepfake technology could be used to spread misinformation via digitally manipulated footage of people saying and doing things that never happened. 

Tyler Durden
Sat, 10/01/2022 – 18:00

via ZeroHedge News https://ift.tt/52GudCc Tyler Durden

Our Emperor Has No Brain

Our Emperor Has No Brain

Authored by Bill Rice Jr via Substack,

Biden must know he’s losing his mind

Staying in office is clearly more important than doing the right thing and resigning…

I normally feel great sympathy for any person battling the terrible disease of dementia. However, in the case of President Biden, who the whole world knows is battling this affliction, the sentiment I feel is closer to disgust.

The reason my normal empathy is lacking is that President Biden himself must know he has this condition … and he won’t acknowledge this and do what’s best for the country and resign.

Not only does Present Biden know this so too does his wife and children. So too does every person who works in the White House. Indeed, it now must be a 24-hour operation for White House aides to write the teleprompter scripts and stage directions they must produce for President Biden.

The best (dark) comedy bit proving my conjecture occurred when White House aides dressed up a volunteer as the Easter Bunny and said Easter Bunny performed his assigned task of keeping our president away from reporters and Easter egg hunters.

What motivated me to write this column is the cringe-inducing moment that happened yesterday when President Biden (going off script) asked if a deceased Congress person was in the room.

We’ve all known people who are obviously losing their mental sharpness. I know several friends who are struggling with this condition right now. (In fact, I wonder if this “brain fog,” at least in some people, might be an adverse reaction to the Covid “vaccines.”)

Regardless of the cause, most people going through this struggle actually admit this, either to themselves or others. When people start to suffer from this condition, they have plenty of moments where their brain functions as well as always. I’ve had people (all retired by the way) confide in me, “Bill, I’m losing my mind.”

So I have no doubt President Biden knows what’s happening to him.

My main point is that any person with an iota of genuine character would acknowledge what is occurring to him, and for the good of the country he’s supposed to be leading, step aside. Absent this happening, one would hope the people who love and care about this person would persuade him to do this.

But these aren’t the type people who are “leading” our country. Instead, they are the type people who care only about their position, status and power and have no qualms whatsoever about participating in a conspiracy to cover up the truth. (An even more sinister possibility is the Powers that Be behind the curtain actually like the fact they have a puppet this easy to control.)

The Real Scandal (the Same-Old Same-Old) …

The conspiracy to ignore Biden’s obvious dementia is almost as large as the conspiracy to conceal the fact the “vaccines” are dangerous and ineffective. Certainly every reporter who covers the president and the White House knows his condition. But just like all the “off-limits” Covid truths, it’s taboo to mention the emperor has no brain.

We’ve all probably known a loved one who had dementia. Knowing this, we all know this condition never improves. It gets worse, often in rapid fashion. So at some point, one assumes, one “adult in the room” will take President Biden aside and convince him he has to resign.

When this day happens, the press is going to HAVE to report the real reason our president decided to belatedly exit political stage left  …. probably after first wandering off toward stage right, which – bad joke or not – has actually happened several times.

I can’t wait for this day if only to see how the press spins the fact it covered up this story for  years.  (“Our President is suffering from dementia” is, in fact, a story). When this day arrives, I hope more than a few Americans ask our truth-seeking journalists one question: Why didn’t you cover this story? And then an even more important question: What other important stories have you refused to investigate and report?

Truth be told, the Biden-has-dementia unreported story ties into all the other unreported stories. The real scandal is that America is “served” by a watchdog press corp that seemingly exists to cover-up real scandals, especially when they involve politicians and leaders on “their team.”

The Biden dementia story also probably gives us one reason the press corps will never expose all the Covid scandals and lies. If the mainstream press did belatedly report this, they’d be admitting they covered up or ignored a massively-important story for years. Not going to happen.

Above, I predict that President Biden will resign before the end of his term. But this is probably a naive assumption. (I also once thought that if and when the “vaccines” were proven to be ineffective at preventing infection or spread our government couldn’t possibly mandate such an experimental shot).

My new maxim is that what shouldn’t happen … will happen (and vice versa).  So it’s very possible President Biden will still be president in January 2025. At that point, I can’t imagine the post-traumatic stress of White House handlers who got “Bernie” through not one weekend, but 208 weekends.

Every day will include more presidential “gaffes,” gaffes which once might have provided the nation much-needed comic relief but are now no longer funny.

It actually strikes me as cruel that so many people who ostensibly care about President Biden won’t do anything to help him. It’s also malfeasance or an abdication of some moral or ethical duty that these people allow a man who could start a nuclear war to remain in office.

One day someone will write the White House tell-all of all tell-alls and the public will belatedly learn how severe President Biden’s cognitive condition really was. Until that day, we’ll continue to live in the surreal world depicted in the Peter Sellers’ cult classic “Being There.”

In that movie, the simple-minded gardener hadn’t been elected president yet. So America did get there.

Tyler Durden
Sat, 10/01/2022 – 17:30

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Election-Denier Stacey Abrams Loses Again After Judge Tosses ‘Voter Suppression’ Lawsuit

Election-Denier Stacey Abrams Loses Again After Judge Tosses ‘Voter Suppression’ Lawsuit

Stacey Abrams, the current and former Democratic candidate for Georgia governor, has tossed out a lawsuit challenging Georgia’s election system following her 2018 loss to Republican Gov. Brian Kemp.

Democrat gubernatorial candidate Stacey Abrams speaks to the media during a press conference at the Israel Baptist Church in Atlanta, Georgia, on May 24, 2022. (Joe Raedle/Getty Images)

The lawsuit – filed nearly four years ago by Abrams’ PAC, Fair Fight Georgia, sought to change how the state conducts elections. Earlier this year, the judge narrowed the scope of the lawsuit by dismissing many of its original claims.

Abrams claimed there was “misconduct, fraud or irregularities” in the voting process – a cardinal sin if you’re a conservative who similarly questions election integrity. She took legal action to stop counties from throwing out rejected provisional and absentee ballots when updated vote totals made clear that Kemp was the likely winner.

“Although Georgia’s election system is not perfect, the challenged practices violate neither the constitution nor the [Voting Rights Amendment],” said U.S. District Judge Steven Jones in his ruling.

The failed candidate and MSM pundit has repeatedly said that her refusal to concede to Kemp is different from election fraud claims by former President Trump, because she “never denied that I lost.”

Yet, even the Washington Post didn’t let Abrams get away with revisionism – noting:

Abrams at various times has said the election was “stolen” and even, in a New York Times interview, that “I won.” She suggested that election laws were “rigged” and that it was “not a free or fair election.” She also claimed that voter suppression was to blame for her loss, even though she admitted she could not “empirically” prove that. While she did acknowledged Kemp was the governor, she refused to say he was the “legitimate” governor. -WaPo

Abrams’ clear refusal to accept her loss sparked a barrage of criticism – including insensitive memes:

Georgia Secretary of State Brad Raffensperger, the lead defendant in the case, hailed the ruling.

“This ruling allows local officials to focus on the task at hand this year—running a safe, secure, and accessible election,” he tweeted. “Stolen election and voter suppression claims by Stacey Abrams were nothing but poll-tested rhetoric not supported by facts and evidence.”

As the Epoch Times notes;

In a statement on Friday, Abrams said despite the loss, the case “had measurable results,” including “the reinstatement of over 22,000 ballots, substantive changes to voting laws, and a platform for voters of color to demand greater equity in our state.”

“During this suit, more than 3,000 voters shared their stories, creating an unprecedented and lasting record of voter testimony, which highlighted the suppressive effects of the Secretary of State’s actions on vulnerable voters,” she said on Twitter.

Abrams vowed to “expand the right to vote” for minorities if she wins the gubernatorial election.

After losing in 2018, lawyers for Abrams’s campaign and the Democrat Party of Georgia asked the court to order that provisional ballots that were rejected due to missing or incorrect information be restored. Her lawsuit also demanded that counties that had already certified vote returns correct their totals and re-certify the results.

The complaint specifically demanded to restore the votes of 1,095 Gwinnett County voters whose absentee ballots were rejected.

Abrams’s campaign contacted voters in Georgia asking if they experienced issues casting a vote.

Kemp’s campaign accused Abrams of trying to steal the election by filing legal challenges and “desperately trying to create more votes for Stacey Abrams.”

Tyler Durden
Sat, 10/01/2022 – 17:00

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Giving Yale Law School The Heave-Ho

A federal clerkship is a coveted position. Judges wield vast amounts of power in selecting their clerks–so vast that fear of reprisals have forced many clerks to stay quiet in the face of abuse. I even proposed eliminating clerkships as a way to eliminate this imbalance of power. But so long as federal clerkships remain, judges will still exercise nearly-unfettered discretion over who they hire.

At a minimum, clerk candidates should meet certain legal competencies: careful reading, clear writing, and sharp acumen. Beyond these checkboxes, the decision to hire one candidate over another will often come down to fit–the fit between the judge and the candidate; the fit between the candidate and other clerks in chambers; the fit between the candidate and clerks in other chambers (inter-chamber shuttle diplomacy is an undervalued attribute of clerking); and so on. Every judge will understand “fit” differently.

Some judges will also hire based on a candidate’s potential for success in the future. We know all about the so-called “feeder” judges who hire clerks with an eye towards recommending them for the Supreme Court. When a Justice hires such a super-star, the “feeder” judge looks good! So “feeder” judges have every incentive to identify clerks–who often only finished 1 or 2 semesters of law school!–with the potential to go upstairs.

Fortunately, potential for success is not limited to One First Street. Many non-elect clerks will pursue distinguished careers in different fields: big law, public interest, criminal defense, academia, government, etc. I think it is very common for judges to give preferences to candidates who seek to enter one field over another. Some judges, for example, are known to feed clerks to the academy. So they may favor candidates who have published, and want to go into teaching. Other judges may have experience in public interest litigation, and provide a benefit to candidates who want to use the law degree to make the world a better place; those candidates who want to cash out in big law may be disfavored. And let’s not be blind to the ideological screen. Some Democratic-appointed judges will only hire liberal clerks. Some Republican-appointed judges will only hire conservative clerks. Of course many judges (including my own) hired an ideologically heterogenous cohort. But many do not–and with the abolition of the filibuster, I suspect the number of ideologically-homogenous chambers will increase.

In short, judges evaluate a candidate based on a host of personal factors–dare one call it holistic. What has the candidate already done? And what might the candidate do in the future–or more precisely, what could the candidate accomplish if the clerkship is now on his/her resume? Yes, bestowing a clerkship on a candidate can be the key or his or her success. It opens up so many doors, including access to a clerk alumni network.

This background brings me to Judge Ho’s plan to stop hiring graduates from Yale Law School. Judge Ho offered a host of reasons that support his decision, which I won’t address here. Rather, I will offer another way of understanding this boycott.

Imagine you are a senior in college. You were accepted to Yale Law School, as well as several other top-tier schools. Mazal tov! Now you have a choice. How do you choose between Yale, Harvard, Columbia, Stanford, Chicago, and Virginia? Perhaps there are financial constraints–some schools may give more aid than others. There may also be personal constraints, such as the need to be close to family. More likely than not, neither of these factors would tip in favor of Yale. I doubt that YLS gives substantially more generous financial aid packages, and New Haven is a pain to get to. Instead, I think an applicant would choose Yale over those other schools because of prestige. Yale is the number-one ranked law school. It looks like Hogwarts. It has the top-ranked scholars. It pumps out circuit and SCOTUS clerks at a really high rate. Many applicants have a glide-path into academia. Your classmates will go on the highest ranks of government. And so on.

Now, imagine you are a right-of-center senior in college. More likely than not, you are familiar with recent episodes on campus, including the “Traphouse” imbroglio. And even if you are not familiar with it, you will find out. How? I am reliably informed that the Harvard Law School admissions office is working with the HLS FedSoc chapter to identify conservative applicants, and persuade them to choose Harvard over Yale. And others outside of Yale are giving similar messages:

Knowing how inhospitable Yale is to conservatives, why would an applicant still pick Yale over other more tolerant places? The answer, again, is prestige. And the desire to obtain that prestige trumps a commitment to values like free speech and academic openness.

How, then, should a judge assess a conservative applicant who chooses to go to Yale? This person knowingly walked into the traphouse for the sake of an elite degree. I think it is reasonable for a judge to conclude that the applicant exercised poor professional judgment. Indeed, the judge may not want to rely on someone who would sacrifice their principles for prestige. In this regard, the Judge would choose to not hire any conservative YLS graduates because they are unreliable, and maybe even untrustworthy. They have already sold out on their values to go to YLS, and will likely sell out in similar ways in the future. In this view, choosing to go to Yale, with full information, is a failure of moral character. Who needs them? Judge Ho’s boycott directly punishes the students for the choices they made, and indirectly punishes the school for failing to address its deficiencies.

Judge Ho’s idea isn’t entirely new. I proposed a variant of it last year during the “Trap House” scandal. I wrote:

At this point, there is only one way to make YLS suffer: deny it the prestige it so desperately seeks. Specifically, conservative and libertarian 1Ls and 2Ls should transfer out en masse to ensure that other schools can take credit for their appellate and SCOTUS clerkships. Good luck placing clerks with only three of the nine Justices and half the federal judiciary. As a plus, students who transfer out may actually learn something about the law–a useful skill for any clerkship.

I do not know if any YLS students actually transferred out. If they did, I will shake their hands. Perhaps some students chose to stay at Yale as a way to reform the institution from the inside. Good luck to them. Maybe some students were unable to transfer for a host of personal reasons. I understand. But there is some sliver of students who said, “yeah, things are awful here, but I am this closes to a Yale JD and I am not going to throw it away.” These are precisely the type people who Judge Ho would not want to hire. Ditto for future graduates who knowingly choose Yale over Harvard or Chicago.

Will Judge Ho’s boycott catch on? To be effective, there must be a critical mass of federal judges who participate. I am reliably informed that some judges have quietly stopped hiring from Yale Law School. They are not willing to be as vocal as Judge Ho is. If you are a judge who stopped hiring those students who willfully go to YLS, and sacrificed principles for prestige, contact me. I can serve as an anonymous clearinghouse.

I don’t think the risk of a boycott is limited to the judiciary. A future Republican administration can categorically label every YLS grad a squish. It is quite feasible for President DeSantis (a HLS grad) to simply boycott all Yale grads who matriculated after 2021. Good luck with explaining why you chose to stay at YLS for that shiny brass ring as some Chicago grad gets the nom.

At some point Dean Gerken will have to take note when the annual clerkship statistics tank–especially those coveted SCOTUS slots. Eventually, she will actually have to discipline those students who break the law school’s rules. And I don’t mean some slap on the wrist. Expulsion would get the message across. Then, law school applicants, and federal judges, can take a second look at Hogwarts.

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FDA Withholding Autopsy Results On People Who Died After Getting COVID-19 Vaccines

FDA Withholding Autopsy Results On People Who Died After Getting COVID-19 Vaccines

Authored by Zachary Stieber via The Epoch Times (emphasis ours),

The U.S. Food and Drug Administration (FDA) is refusing to release the results of autopsies conducted on people who died after getting COVID-19 vaccines.

Syringes containing a COVID-19 vaccine in Needham, Mass., on June 21, 2022. (Joseph Prezioso/AFP via Getty Images)

The FDA says it is barred from releasing medical files, but a drug safety advocate says that it could release the autopsies with personal information redacted.

The refusal was issued to The Epoch Times, which submitted a Freedom of Information Act for all autopsy reported obtained by the FDA concerning any deaths reported to the Vaccine Adverse Event Reporting System following COVID-19 vaccination.

Reports are lodged with the system when a person experiences an adverse event, or a health issue, after receiving a vaccine. The FDA and other agencies are tasked with investigating the reports. Authorities request and review medical records to vet the reports, including autopsies.

The FDA declined to release any reports, even redacted copies.

The FDA cited federal law, which enables agencies to withhold information if the agency “reasonably foresees that disclosure would harm an interest protected by an exemption,” with the exemption being “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.”

Federal regulations also bar the release of “personnel, medical and similar files the disclosure of which constitutes a clearly unwarranted invasion of personal privacy.”

The Epoch Times has appealed the denial, in addition to the recent denial of results of data analysis of VAERS reports.

‘Easily Be Redacted’

Kim Witczak, a drug safety advocate who advises the FDA as part of the Psychopharmacologic Drugs Advisory Committee, said that the reports could be released with personal information blacked out.

“The personal information could easily be redacted without losing the potential learnings from [the] autopsy,” Witczak told The Epoch Times via email.

People make the choice to submit autopsy results to the Vaccine Adverse Event Reporting System, Witczak noted.

“If someone submits their experience to VAERS they want and expect to have it investigated by the FDA. This includes autopsy reports,” she said.

Autopsies are examinations of deceased persons performed to determine the cause of death.

“Autopsies can be an important part of postmortem analysis and should be done especially with increased deaths following COVID-19 vaccination,” Witczak said.

FDA Responds

An FDA spokesperson noted that deaths following COVID-19 vaccination are rare, citing the number of reports made to VAERS.

As of Sept. 14, 16,516 reports of death following COVID-19 vaccination have been reported. Approximately 616 million doses have been administered in the United States through September.

The spokesperson declined to say whether the FDA would ever release the autopsy results, but pointed to a paper authored by researchers with the FDA and the Centers for Disease Control and Prevention (CDC).

Read more here…

Tyler Durden
Sat, 10/01/2022 – 16:30

via ZeroHedge News https://ift.tt/fPbUuc4 Tyler Durden

Fed “Begins To Split” On Rate Hikes As “Chaotic Market Breakdown” Looms

Fed “Begins To Split” On Rate Hikes As “Chaotic Market Breakdown” Looms

Back in early 2018, around the time the Fed was confident it could hike its way to around 4% without an accident, and with balance sheet QT on “autopilot”, we first warned that every fed tightening cycle leads to a crisis.

A few months later, in late December, this was confirmed when the Fed panicked and ended its tightening cycle very prematurely. Shortly after it started restarted (NOT) QE, which was then followed by the liquidity supernova that was the covid global lockdowns, and everyone knows the rest.

So fast forward to the start of 2022, when just as the Fed was setting off on its latest tightening campaign, we again reminded readers that “every Fed tightening cycle ends in disaster and then, much more Fed easing.”

While this warning was (again) ignored for far too long, with global central banks hiking rates no less than 294 times since Aug 2021 (vs 1302 rate cuts since Lehman), last week the Bank of England confirmed that this time won’t be different when it quickly ended its QT and restarted QE (“temporarily” of course) to avoid a brutal collapse of the US pension system (which for some bizarre reason, had been allowed to use margin to hedge duration exposure). And while so far the Fed has shown it is confident it is immune to the crushing consequences of the biggest ever tightening cycle and reversal in global liquidity…

… recent events are starting to make some high-profile financial luminaries nervous, starting with Mohamed El-Erian, who openly agreed with us on Friday saying that an “economic accident” would precede any central bank pivot…

… an “accident” which Bank of America’s credit strategists warned could be imminent when they said that “credit stress approaching critical levels, now is the time to put emphasis on risk management“, and unless the Fed slows down its hiking pace, it is about to break the all-important corporate bond market, to wit:

With credit stress approaching critical levels, now is the time to put emphasis on risk management. This means slower pace of rate hikes at immediate upcoming meetings and a potential pause subsequently, to allow the economy to fully adjust to all the extreme tightening already implemented, but still working its way through the financial system’s plumbing. Failure to do so raises the risk of credit market dysfunction, which, if occurred, would be difficult to contain and fix.

Or maybe we are wrong and the Fed is finally becoming aware that it its actions are about to break the economy and market again. That’s what Charlie Gasparino reported yesterady when he tweeted that, according to several big investors, “federal reserve officials getting increasingly worried about “financial stability” as opposed to inflation as higher rates begin to crush bonds.” Gasparino continued that the Fed was growing “worried about possible “Lehman Moment” with a 4% FF rate as Bonds and derivatives tied to them crash, given the enormous debt issued in just the past 3 years at super low rates. A Fed watcher told me the UK intervention was not “a one off” and the same systemic risk could happen here, which might cause the Fed to pause.“

While that may sound like a lot of wishful thinking by the “big investors” it is becoming increasingly clear that Bank of America’s warning is certainly starting to resonate with Fed officials. As a reminder, the BofA team warned that to avoid “credit market dysfunction”, the Fed should slower “the pace of rate hikes at immediate upcoming meetings and a potential pause subsequently, to allow the economy to fully adjust to all the extreme tightening already implemented.”

It now appears that they are doing just that, because according to Bloomberg, Federal Reserve officials “are starting to stake out different views on how fast to raise interest rates as they balance hot inflation against rising stress in financial markets.” Translation: here come the cold feet.

As Bloomberg elaborates, “with Fed target range now at 3% to 3.25% and only a few moves from reaching their forecast peak, officials are starting to speak differently about the urgency with which they need to get there. Hawks like Cleveland Fed chief Loretta Mester say they must keep raising rates aggressively to win the battle against inflation even if that causes a recession.” However, Vice Chair Lael Brainard has offered a slightly softer assessment while continuing to stress the need to tighten policy. Brainard’s speech Friday — the first from Fed board leadership since officials met last week — said policy will need be restrictive for some time and avoid the risk of prematurely pulling back.

But unlike her hawkish colleagues, “she injected a note of caution about how fast they need to go, while discussing a number of ways in which the global rate-hiking cycle could spill over on the US economy.” San Francisco Fed president Mary Daly also highlighted the cost of doing too much — as well as too little — to cool prices.

As Bloomberg notes, their comments injected a slight variation into what has been a uniformed stream of insistence from regional Fed presidents declaring unflinching resolve to crush inflation.

To be sure, the costs to the economy have already been telegraphed in the form of falling asset prices with the S&P 500 plunging 9.3% in September – the worst September since 2008 – as markets have now lost over $10 trillion from the all time high.

But it’s the elusive economic collapse that is seen as the greenlight for any Fed pivot – just two days ago Loretta Mester went so far to say that not even a recession would stop the Fed from hiking further…

  • *MESTER SAYS RECESSION WON’T STOP FED FROM RAISING RATES

… a view which seems dangerously naive and ignores the political fallout (for the Democratic party) that millions of lost jobs will lead to. Furthermore, while bond and stock values have cratered, for now the financial system – at least in the US – seems to be working just fine.

But if the BofA strategy team is correct, that’s about to end with a bang. Indeed, even Bloomberg brings attention to what we reported last night, saying that “Bank of America Corp. says credit stress is at a “borderline critical level” beyond which dysfunction begins. That’s something the Fed wants to avoid because market breakdowns are difficult to control and can accelerate downturns.”

In any case, the growing divisions among officials showed up in their forecasts released Sept. 21 that showed 8 officials estimating they would finish the year with rates in a 4% to 4.25% range while nine were a quarter point higher. Their 2024 forecast was even more bizarre and clueless.

Another novel narrative to emerge in Brainard’s speech, was her warning that it will take time for the full extent of tightening to bite down broadly across the economy, another way of arguing for some patience starting now.

“Uncertainty is currently high, and there are a range of estimates around the appropriate destination of the target range for the cycle,” she told a conference hosted at the New York Fed on financial stability. “Proceeding deliberately and in a data-dependent manner will enable us to learn how economic activity and inflation are adjusting to the cumulative tightening.”

That contrasts sharply with Fed hawks. In fact, Mester has argued aggressively against down-shifting into more deliberative policy, as officials have done in past tightening cycles when high uncertainty lead the central bank to inch rates up a quarter-point at a time. At a time when inflation is too high, and the direction of inflation expectations is hard forecast, overshooting is better than undershooting, Mester said:

“Some results in the literature suggest that when policymakers confront more uncertainty either in their data or in their models, they should be more cautious in acting, that is, be more inertial in their responses,” she said in a Sept. 26 speech. “Subsequent research has shown that this is not generally true.”

“It can be better for policymakers to act more aggressively because aggressive and pre-emptive action can prevent the worst-case outcomes from actually coming about,” she added.

Ironically, just as she read those words, the Bank of England capitulated and pivoted back to QE.

Yet while a fissure is finally emerging within the FOMC over how fast to hike to peak rates, so far not a single official is talking about easing rapidly once they get there. Labor markets are strong with forecasters estimating another 250,000 jobs added in September, while the latest inflation report was discouraging. But expect all that to change and soon, because as Bloomberg summarizes, “What ultimately determines the pace might be just whether markets remain orderly or not.“

This matters because while the Fed’s favorite economic indicators are backward looking and lag anywhere between 6 and 9 months, the market still anticipated key turning points and traders accordingly.

“They have made the decision they are going to tighten more rather than less, which guarantees they will over-tighten. How are we going to see it? You are going to see it in financial conditions,” said former Fed staffer, Julia Coronado, founding partner at MacroPolicy Perspectives.

“I don’t think they really understand” the risk of chaotic market breakdowns, she added. “When you say we are hellbent on being the fastest car on the road, that encourages a lot of positioning that is one way.”

And speaking of chaotic market breakdowns, it is not just the credit market that is on the edge: according to another former NY Fed staffer, and current rates strategist at Bank of America, Mark Cabana who on Friday wrote a must read note (available to pro subscribers), in which he warned that Treasury “market functioning breakdown is a growing risk & may see long-end duration sell-off + curve bear steepen. The Fed is unlikely to tolerate a UST market functioning breakdown for long; if the UST market doesn’t work, broader markets likely don’t work.“

Here, one look at the record low liquidity…

… and exploding volatility in the Treasury market which was already blown above the 2020 covid crash and is on the verge of surpassing Lehman levels…

… suggests that the Fed has already lost control of the Treasury market which is no longer functioning properly. How long until the Fed admits this, and how much additional pain it will tolerate before it capitulates, is a different question.

Tyler Durden
Sat, 10/01/2022 – 16:00

via ZeroHedge News https://ift.tt/vl8Jt1I Tyler Durden

California Gasoline Is Now More Than Double The Price In Texas

California Gasoline Is Now More Than Double The Price In Texas

Authored by Mike Shedlock via MishTalk.com,

California leads the nation in top gasoline prices, over double Texas, Mississippi, and Louisiana…

Gas prices courtesy of AAA

According to the AAA, the National Average Gas Price on October 1, 2022 is $3.80.

California lead the nation in price at $6.358 per gallon. That’s more than double the price paid in Texas, Mississippi, and Louisiana. Its nearly double the price paid in eight other states.

Oregon has the second highest average price at $5.41 per gallon. That’s about 95 cents less than California pays.

Mono County California has the dubious distinction of the highest county in the highest state at $6.937 per gallon. 

Gavin Newsom’s Gas Price Premium

Please consider Gavin Newsom’s Gas Price Premium

Cash-strapped Americans have received relief from falling gas prices in recent weeks, but not Californians.

The average gas price in the Golden State this week surged to $6.29 a gallon—$2.50 more than the national average—and the reasons are worth distilling since Gov. Gavin Newsom wants to export the state’s energy policies nationwide.

Taxes add about 66 cents to the price of a gallon, about twice as much on average as other states. California’s cap-and-trade program and low-carbon fuel standard add roughly another 46 cents a gallon.

These climate regulations are causing refineries to shut down or convert to producing biofuels that are more profitable because of rich government subsidies. California lost 12% of refining capacity between 2017 and 2021 and is set to lose another 8% by the end of next year. Yet refineries outside of the state can’t produce its supposedly greener fuel blend.

So when California refineries experience problems, gasoline supply becomes tight and prices shoot up.

“If you’re a (refiner) on the Gulf Coast, your gross profit on gasoline is about $6.60 (per barrel of oil). If you’re in Los Angeles it’s about $101,” Tom Kloza of the Oil Price Information Service told the Mercury News.

Expect California Governor Gavin Newsom to run for President in 2024. 

If you want to pay higher prices for everything, he’s the man to root for.

*  *  *

Like these reports? I hope so, and if you do, please Subscribe to MishTalk Email Alerts.

Tyler Durden
Sat, 10/01/2022 – 15:30

via ZeroHedge News https://ift.tt/E6Npxqg Tyler Durden

Giving Yale Law School The Heave-Ho

A federal clerkship is a coveted position. Judges wield vast amounts of power in selecting their clerks–so vast that fear of reprisals have forced many clerks to stay quiet in the face of abuse. I even proposed eliminating clerkships as a way to eliminate this imbalance of power. But so long as federal clerkships remain, judges will still exercise nearly-unfettered discretion over who they hire.

At a minimum, clerk candidates should meet certain legal competencies: careful reading, clear writing, and sharp acumen. Beyond these checkboxes, the decision to hire one candidate over another will often come down to fit–the fit between the judge and the candidate; the fit between the candidate and other clerks in chambers; the fit between the candidate and clerks in other chambers (inter-chamber shuttle diplomacy is an undervalued attribute of clerking); and so on. Every judge will understand “fit” differently.

Some judges will also hire based on a candidate’s potential for success in the future. We know all about the so-called “feeder” judges who hire clerks with an eye towards recommending them for the Supreme Court. When a Justice hires such a super-star, the “feeder” judge looks good! So “feeder” judges have every incentive to identify clerks–who often only finished 1 or 2 semesters of law school!–with the potential to go upstairs.

Fortunately, potential for success is not limited to One First Street. Many non-elect clerks will pursue distinguished careers in different fields: big law, public interest, criminal defense, academia, government, etc. I think it is very common for judges to give preferences to candidates who seek to enter one field over another. Some judges, for example, are known to feed clerks to the academy. So they may favor candidates who have published, and want to go into teaching. Other judges may have experience in public interest litigation, and provide a benefit to candidates who want to use the law degree to make the world a better place; those candidates who want to cash out in big law may be disfavored. And let’s not be blind to the ideological screen. Some Democratic-appointed judges will only hire liberal clerks. Some Republican-appointed judges will only hire conservative clerks. Of course many judges (including my own) hired an ideologically heterogenous cohort. But many do not–and with the abolition of the filibuster, I suspect the number of ideologically-homogenous chambers will increase.

In short, judges evaluate a candidate based on a host of personal factors–dare one call it holistic. What has the candidate already done? And what might the candidate do in the future–or more precisely, what could the candidate accomplish if the clerkship is now on his/her resume? Yes, bestowing a clerkship on a candidate can be the key or his or her success. It opens up so many doors, including access to a clerk alumni network.

This background brings me to Judge Ho’s plan to stop hiring graduates from Yale Law School. Judge Ho offered a host of reasons that support his decision, which I won’t address here. Rather, I will offer another way of understanding this boycott.

Imagine you are a senior in college. You were accepted to Yale Law School, as well as several other top-tier schools. Mazal tov! Now you have a choice. How do you choose between Yale, Harvard, Columbia, Stanford, Chicago, and Virginia? Perhaps there are financial constraints–some schools may give more aid than others. There may also be personal constraints, such as the need to be close to family. More likely than not, neither of these factors would tip in favor of Yale. I doubt that YLS gives substantially more generous financial aid packages, and New Haven is a pain to get to. Instead, I think an applicant would choose Yale over those other schools because of prestige. Yale is the number-one ranked law school. It looks like Hogwarts. It has the top-ranked scholars. It pumps out circuit and SCOTUS clerks at a really high rate. Many applicants have a glide-path into academia. Your classmates will go on the highest ranks of government. And so on.

Now, imagine you are a right-of-center senior in college. More likely than not, you are familiar with recent episodes on campus, including the “Traphouse” imbroglio. And even if you are not familiar with it, you will find out. How? I am reliably informed that the Harvard Law School admissions office is working with the HLS FedSoc chapter to identify conservative applicants, and persuade them to choose Harvard over Yale. And others outside of Yale are giving similar messages:

Knowing how inhospitable Yale is to conservatives, why would an applicant still pick Yale over other more tolerant places? The answer, again, is prestige. And the desire to obtain that prestige trumps a commitment to values like free speech and academic openness.

How, then, should a judge assess a conservative applicant who chooses to go to Yale? This person knowingly walked into the traphouse for the sake of an elite degree. I think it is reasonable for a judge to conclude that the applicant exercised poor professional judgment. Indeed, the judge may not want to rely on someone who would sacrifice their principles for prestige. In this regard, the Judge would choose to not hire any conservative YLS graduates because they are unreliable, and maybe even untrustworthy. They have already sold out on their values to go to YLS, and will likely sell out in similar ways in the future. In this view, choosing to go to Yale, with full information, is a failure of moral character. Who needs them? Judge Ho’s boycott directly punishes the students for the choices they made, and indirectly punishes the school for failing to address its deficiencies.

Judge Ho’s idea isn’t entirely new. I proposed a variant of it last year during the “Trap House” scandal. I wrote:

At this point, there is only one way to make YLS suffer: deny it the prestige it so desperately seeks. Specifically, conservative and libertarian 1Ls and 2Ls should transfer out en masse to ensure that other schools can take credit for their appellate and SCOTUS clerkships. Good luck placing clerks with only three of the nine Justices and half the federal judiciary. As a plus, students who transfer out may actually learn something about the law–a useful skill for any clerkship.

I do not know if any YLS students actually transferred out. If they did, I will shake their hands. Perhaps some students chose to stay at Yale as a way to reform the institution from the inside. Good luck to them. Maybe some students were unable to transfer for a host of personal reasons. I understand. But there is some sliver of students who said, “yeah, things are awful here, but I am this closes to a Yale JD and I am not going to throw it away.” These are precisely the type people who Judge Ho would not want to hire. Ditto for future graduates who knowingly choose Yale over Harvard or Chicago.

Will Judge Ho’s boycott catch on? To be effective, there must be a critical mass of federal judges who participate. I am reliably informed that some judges have quietly stopped hiring from Yale Law School. They are not willing to be as vocal as Judge Ho is. If you are a judge who stopped hiring those students who willfully go to YLS, and sacrificed principles for prestige, contact me. I can serve as an anonymous clearinghouse.

I don’t think the risk of a boycott is limited to the judiciary. A future Republican administration can categorically label every YLS grad a squish. It is quite feasible for President DeSantis (a HLS grad) to simply boycott all Yale grads who matriculated after 2021. Good luck with explaining why you chose to stay at YLS for that shiny brass ring as some Chicago grad gets the nom.

At some point Dean Gerken will have to take note when the annual clerkship statistics tank–especially those coveted SCOTUS slots. Eventually, she will actually have to discipline those students who break the law school’s rules. And I don’t mean some slap on the wrist. Expulsion would get the message across. Then, law school applicants, and federal judges, can take a second look at Hogwarts.

The post Giving Yale Law School The Heave-Ho appeared first on Reason.com.

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