Category: reason

I’m delighted to report that Stanford law professor Diego Zambrano (an expert on civil procedure) will be guest-blogging this week about his forthcoming University of Chicago Law Review article, Foreign Dictators in U.S. Court:

It’s almost impossible to sue a foreign government in U.S. courts. The Foreign Sovereign Immunities Act, the court-created “act of state” doctrine, and other common law immunities shield foreign officials and governments from most lawsuits. For instance, courts have dismissed claims against China, Cuba, Venezuela, and Russia over allegations of torture, detentions, and election interference. Yet, foreign governments have unfettered access to U.S. courts as plaintiffs. And foreign dictatorships, including Russia, China, Turkey, and Venezuela, have leveraged this access to harass political dissidents, critics, and even newspapers in the United States. These doctrines create an asymmetry at the heart of this Article: foreign dictators and their proxies can access our courts as plaintiffs to harass their opponents, but their regimes are, in turn, immune from lawsuits here.

This Article exposes this asymmetry and argues that U.S. courts and Congress should make it harder for foreign dictators to abuse our legal system. The Article offers three novel contributions.

First, the Article provides the first systematic assessment of foreign dictatorships in U.S. court. While much of the literature is siloed by substantive area of law—focusing on contexts like human rights or property expropriations—this Article treats dictators as a trans-substantive category of litigants, worthy of special analysis.

Second, the Article exposes how foreign dictators are increasingly taking advantage of U.S. courts and comity doctrines, especially as plaintiffs. In a misguided effort to promote harmonious foreign relations, courts have provided foreign dictators an array of protections and privileges that dictators are eagerly exploiting.

Finally, the Article demonstrates that there is no historical, constitutional, or statutory obligation on U.S. courts to give foreign dictators these legal protections and unfettered access to our courts. Because of that, I offer four concrete proposals to both stymy dictators’ access to U.S. court as plaintiffs—through a proposed foreign sovereign anti-SLAPP statute—and weaken the protections that dictators enjoy as defendants. Simply stated, U.S. courts should not be instruments of foreign authoritarian oppression.

I very much look forward to Prof. Zambrano’s posts!

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When will COVID-19 herd immunity allow a return to normal life in the United States? Probably never, according to a New York Times story published today. But the Times says widespread immunity, especially among Americans who are most vulnerable to the disease, still can be expected to dramatically reduce hospitalizations and deaths.

Are you wondering what the practical difference is? So am I.

“Reaching ‘Herd Immunity’ Is Unlikely in the U.S., Experts Now Believe,” the Times headline warns. Although “more than half of adults in the United States have been inoculated with at least one dose of a vaccine,” health and science writer Apoorva Mandavilli reports, “daily vaccination rates are slipping, and there is widespread consensus among scientists and public health experts that the herd immunity threshold is not attainable—at least not in the foreseeable future, and perhaps not ever.”

What is attainable? “Rather than making a long-promised exit,” Mandavilli says, “the virus will most likely become a manageable threat that will continue to circulate in the United States for years to come, still causing hospitalizations and deaths but in much smaller numbers.” That sounds like a win to me.

The Association for Professionals in Infection Control and Epidemiology says “herd immunity (or community immunity) occurs when a high percentage of the community is immune to a disease (through vaccination and/or prior illness), making the spread of this disease from person to person unlikely.” As a result of immunity from vaccination or prior infection, “even individuals not vaccinated (such as newborns and the immunocompromised) are offered some protection because the disease has little opportunity to spread within the community.”

The distinction drawn by the Times therefore hinges on exactly how “unlikely” virus transmission becomes and how much protection qualifies as “some.” In a “rough guide” to herd immunity published by the journal Clinical Infectious Diseases in 2011, British epidemiologists Paul Fine, Ken Eames, and David Heymann noted that the term “is widely used but carries a variety of meanings.” Still, “a common implication of the term is that the risk of infection among susceptible individuals in a population is reduced by the presence and proximity of immune individuals.”

A simple definition of herd immunity is based on the formula 1 – 1/R₀, where R₀ (the “basic reproduction number”) represents the number of people infected by a typical carrier at the outset of an epidemic. Assuming that immunity is evenly distributed across the population and the R₀ is 3, for example, the threshold would be about 67 percent. At that point, Fine et al. say, “incidence of the infection would decline.”

According to one estimate, the basic reproduction number for COVID-19 in the United States at the outset of the epidemic was about 4, which implies a herd immunity threshold of about 75 percent. Mandavilli notes that most epidemiologists initially thought the threshold would be somewhere between 60 and 70 percent. But after taking into account new, more contagious coronavirus variants (which raise the basic reproduction number), she says, “experts now calculate the herd immunity threshold to be at least 80 percent.” And “if even more contagious variants develop,” she adds, “the calculation will have to be revised upward again.”

It is hard to say how close the U.S. is to any of those numbers, since some but not all Americans who were infected by the COVID-19 virus (often without realizing it, assuming their symptoms were mild or nonexistent) also have been vaccinated. Data scientist Youyang Gu, whose COVID-19 projections have been influential and unusually accurate, estimated that 53 percent of the population would be immune by May 1, rising to 64 percent by late November. Gu has since stopped updating that estimate, and his reasoning is instructive.

“Theoretical herd immunity is unrealistic and should not be the endgame,” he said on Twitter in late February. “The endgame is the widespread availability of COVID-19 vaccines that virtually eliminates severe illness. And we are just a few months away from reaching that goal.”

Even without crossing the threshold emphasized by the Times, the number of active COVID-19 cases in the United States, according to Worldometer’s numbers (which include only verified infections), has fallen by 26 percent since late January. During the same period, the seven-day average of daily deaths fell by nearly 80 percent. The seven-day average of newly identified cases has fallen by 80 percent since mid-January. All that happened even as many states were relaxing or removing COVID-19 restrictions such as face mask mandates and occupancy limits.

Those trends suggest it is a mistake to equate controlling the epidemic with reaching herd immunity as traditionally defined by epidemiologists. “People were getting confused and thinking you’re never going to get the infections down until you reach this mystical level of herd immunity, whatever that number is,” Anthony Fauci, the Biden administration’s top COVID-19 adviser, told the Times.

When a quarter of Americans still say they do not plan to get vaccinated, that confusion is not likely to help matters. If people at low risk from COVID-19 assume that returning to normal requires herd immunity, which epidemiologists say is impossible, that only weakens the incentive to get vaccinated.

“When can we return to normal?” Gu asked in February. “Forget about ‘herd immunity.’ By summer, everybody who wants a vaccine will be able to get one. The vulnerable population will long have been able to receive their shots. Hospitalizations & deaths will be at negligible levels. Normality will happen…with or without herd immunity.”

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Riverside County Supervisor and Libertarian Party politician Jeff Hewitt announced this weekend he will be running to replace California Gov. Gavin Newsom in the upcoming recall election.

Last week, California Secretary of State Shirley Weber determined that recall supporters had gathered enough signatures to force a vote to take place sometime this fall. Three Republicans (including Caitlyn Jenner) had announced plans to run against Newsom.

Hewitt, 67, is the first Libertarian Party member to join the fray. Formerly the mayor of Calimesa, Hewitt was elected to the Riverside County Board of Supervisors in 2018.

According to the Riverside Press-Enterprise, Hewitt had already been exploring a possible run for governor in 2022, when Newsom’s first term would normally end. On Friday evening, he formally announced he was going to run against Newsom in the recall.

In an op-ed that ran in The Orange County Register on Sunday, he explained his reasons. While he is a critic of Newsom’s authoritarian pandemic responses, he sees the behavior as a symptom of a much bigger problem in how the state’s government gets in the way of its citizens’ choices.

“The reason I am entering the race for governor in the recall election is that this state no longer accommodates dreams, fosters ideas or solves problems,” he wrote. “Instead, the state seems to grow more restrictive and punitive to individuals who want to make this state a better place to live through hard work and innovation.”

He’s running on a platform of storing and managing water better, loosening California’s notoriously restrictive regulations that prevent new housing construction, and improving school choice by supporting educational savings accounts.

In his op-ed he sells his membership in the Libertarian Party as a plus in a very fractured state, noting that a survey from the Public Policy Institute of California found that 62 percent of voters wanted a viable third party in the state.

“As a Libertarian, not a member of either major party, I have the ability to accept the best ideas of each side and work for consensus and compromise that benefits the state as a whole,” he wrote.

Reason took note of the importance of Hewitt’s Board of Supervisors win back in 2018 given the size of Riverside County (a population of 2.5 million). Since then, the Libertarian Party has picked up two state-level lawmakers. Rep. Marshall Burt (L–Green River) was elected to Wyoming’s state House in November. In Maine, the party picked up a second state-level lawmaker when state Rep. John Andrews (L–Paris) left the GOP in December (a month after getting reelected) and joined up.

Hewitt has also been the subject of two workplace harassment claims, one of which ended with the county settling with the complainant for $50,000.

Below, watch Reason TV’s interview with Hewitt from 2019:

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In 1950, Justice Jackson wrote the majority opinion in Feres v. United States. He held that members of the military cannot sue the government for injuries “incident to service,” even if the activities are unrelated to combat. For decades, Justices Scalia and Thomas have argued that this precedent is inconsistent with the Federal Torts Claims Act. And for decades, litigants have asked the Court to reconsider this precedent. The latest petition came from Jane Doe, a West Point cadet who alleged she was raped by another cadet. Under the Feres doctrine, her claim was dismissed.

Today, the Supreme Court denied Doe’s cert petition. Justice Thomas dissented from the denial of cert. He recounted the flaws with Feres, stretching back to a 1987 Scalia dissent.

As I have previously explained, this approach has little justification. The Act “‘renders the United States liable to all persons, including servicemen, injured by the negligence of Government employees.'” Lanus v. United States, 570 U.S. 932 (2013) (THOMAS, J., dissenting from denial of certiorari) (quoting United States v. Johnson, 481 U. S. 681, 693 (1987) (Scalia, J., dissenting)); see also Daniel v. United States, 587 U. S. ___, ___–___ (2019) (THOMAS, J., dissenting from denial of certiorari) (slip op., at 1–2). Emphasizing its breadth, the law contains a narrow carve out for military-related claims: those “arising out of . . . combatant activities . . . during time of war.” 28 U. S. C. §2680(j). This single military exception involving “combatant activities” clearly does not apply here. And, other than this specific exception, the law does not “‘preclud[e] . . . suits brought by servicemen'”—at least not because of their military status. Lanus, 570 U. S., at 932. Feres was wrongly decided; and this case was wrongly decided as a result. 

We should follow it. 

Justice Scalia was willing to call out Feres on his very first term on the bench. Yet, the three Trump appointees are silent. Do they agree with Feres? Do they think this precedent is too well settled? Or is the thought of reversing Justice Jackson too much to bear? And really, this vehicle would be a perfect way to build consensus on overruling erroneous precedents. The only reliance interests favor the government keeping damages claims out of court. And Congress could easily remedy this decision if the Court messed up. Would Kagan and Sotomayor really stand by precedent to maintain a rule that bars rape allegations from federal court? Justice Ginsburg was willing to revisit the Feres doctrine in 2019. This case seems to be an excellent vehicle. Thomas plus three equals cert. Alas, silence.

Justice Thomas suggests that his colleagues may be uncomfortable with wiping out a seventy year old precedent. And he includes a lengthy string cite of precedents that were overruled:

Perhaps the Court is hesitant to take up this issue at all because it would require fiddling with a 70-year-old precedent that is demonstrably wrong. But if the Feres doctrine is so wrong that we cannot figure out how to rein it in, thenthe better answer is to bid it farewell. There is precedent for that approach. See, e.g., Trump v. Hawaii, 585 U. S. ___, ___ (2018) (slip op., at 38) (overruling Korematsu v. United States, 323 U. S. 214 (1944)); Leegin Creative Leather Products, Inc. v. PSKS, Inc., 551 U. S. 877, 882 (2007) (overruling Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U. S. 373 (1911)); Lapides v. Board of Regents of Univ. System of Ga., 535 U. S. 613, 623 (2002) (overruling Ford Motor Co. v. Department of Treasury of Ind., 323 U. S. 459 (1945)); Exxon Corp. v. Central Gulf Lines, Inc., 500U. S. 603, 612 (1991) (overruling Minturn v. Maynard, 17 How. 477 (1855)); Malloy v. Hogan, 378 U. S. 1, 2, 6 (1964) (overruling Twining v. New Jersey, 211 U. S. 78 (1908)); Brown v. Board of Education, 347 U. S. 483, 494–495 (1954) (overruling Plessy v. Ferguson, 163 U. S. 537 (1896)); Erie R.Co. v. Tompkins, 304 U. S. 64, 79–80 (1938) (overruling Swift v. Tyson, 16 Pet. 1 (1842)).

I can quibble with a few of these items. Trump v. Hawaii did not overrule Korematsu. The “Court of History” is not a real Court. And Brown did not really overrule Plessy. Chief Justice Warren merely said “separate but equal” has no place in the doctrine of public education. But a useful string citation no less.

If the Court finds a way to overturn this Jackson precedent, may I add another to the list: Wickard v. Filburn.

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Today’s order list announced the appointment of Gail A. Curley as the Marshal of the Court. Here is the Court’s press release.

Colonel Gail A. Curley has been appointed the new Marshal of the Supreme Court of the United States. She will be the eleventh Marshal of the Court and the second woman to hold the position. She succeeds Pamela Talkin, who retired on July 31, 2020 after 19 years as Marshal. Col. Curley is expected to assume her new duties on June 21, 2021. As Marshal, Col. Curley will serve as the Court’s chief security officer, facilities administrator, and contracting executive, managing approximately 260 employees, including the Supreme Court Police Force, which provides security for the Justices, Court staff, visitors, the building, and surrounding grounds. Col. Curley will call the Supreme Court to order in argument sessions, maintaining order and decorum during Court proceedings.

Col. Curley comes to the Court from the U.S. Army where she was the chief of the National Security Law Division in the Office of The Judge Advocate General. She supervised a team of judge advocates, led the strategic engagements program for the Judge Advocate General’s Corps, and provided legal advice and support on national security law to senior Army leadership. From 2016 to 2019, Col. Curley was the staff judge advocate for Headquarters, U.S. Army Europe in Wiesbaden, Germany, where she served as the senior U.S. Army attorney for an area consisting of 50 nations and supervised over 300 legal professionals. She has held a wide variety of leadership and legal positions over her military career at many locations including Germany, Afghanistan, and the continental United States.

Col. Curley earned her Bachelor’s degree in political science in 1991 from the United States Military Academy and received a J.D. in 1999 from the University of Illinois College of Law. She received a Master of Laws degree in 2004 from The Judge Advocate General’s Legal Center and School and a Master of Science in 2014 from the Dwight D. Eisenhower School for National Security and Resource Strategy.

Curley will replace Pamela Talkin, who served a Marshal from 2001 through July 2020. Palkin previously served as Clarence Thomas’s Chief of Staff at the EEOC. And she testified on his behalf following Anita Hill’s allegations.

Be sure not to confuse the Marshal of the Court with the (John) Marshall of the Court. Funny story. During the Burr trial, Chief Justice John Marshall presided. And his brother, James Marshall, served as the Marshall for the federal courts. So he was Marshal Marshall. Imagine if Marshal Marshall marshaled the court martial!? (Marsha, Marsha, Marsha).

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Here’s “anyone lived in a pretty how town” (1940) by e.e. cummings (1894-1962). (This is on my YouTube channel, which mostly consists of my Sasha Reads playlist, plus a smattering of law-related songs.)

anyone lived in a pretty how town
(with up so floating many bells down)
spring summer autumn winter
he sang his didn’t he danced his did….

For the rest of my “Sasha Reads” playlist, click here. Past poems are:

1. “Ulysses” by Alfred, Lord Tennyson
2. “The Pulley” by George Herbert
3. “Harmonie du soir” (“Evening Harmony”) by Charles Baudelaire (French)
4. “Dirge Without Music” by Edna St. Vincent Millay
5. “Clancy of the Overflow” by A.B. “Banjo” Paterson
6. “Лотова жена” (“Lotova zhena”, “Lot’s wife”) by Anna Akhmatova (Russian)
7. “The Jumblies” by Edward Lear
8. “The Conqueror Worm” by Edgar Allan Poe
9. “Les Djinns” (“The Jinns”) by Victor Hugo (French)
10. “I Have a Rendezvous with Death” by Alan Seeger
11. “When I Was One-and-Twenty” by A.E. Housman
12. “Узник” (“Uznik”, “The Prisoner” or “The Captive”) by Aleksandr Pushkin (Russian)
13. “God’s Grandeur” by Gerard Manley Hopkins
14. “The Song of Wandering Aengus” by William Butler Yeats
15. “Je crains pas ça tellment” (“I’m not that scard about”) by Raymond Queneau (French)
16. “The Naming of Cats” by T.S. Eliot
17. “The reticent volcano keeps…” by Emily Dickinson
18. “Она” (“Ona”, “She”) by Zinaida Gippius (Russian)
19. “Would I Be Shrived?” by John D. Swain
20. “Evolution” by Langdon Smith
21. “Chanson d’automne” (“Autumn Song”) by Oscar Milosz (French)
22. “love is more thicker than forget” by e.e. cummings
23. “My Three Loves” by Henry S. Leigh
24. “Я мечтою ловил уходящие тени” (“Ia mechtoiu lovil ukhodiashchie teni”, “With my dreams I caught the departing shadows”) by Konstantin Balmont (Russian)
25. “Dane-geld” by Rudyard Kipling
26. “Rules and Regulations” by Lewis Carroll
27. “Vers dorés” (“Golden Lines”) by Gérard de Nerval (French)
28. “So That’s Who I Remind Me Of” by Ogden Nash
29. “The Epic” by Alfred, Lord Tennyson
30. “La chambre double” (“The Double Room”) by Charles Baudelaire (French)
31. “Медный всадник” (“The Bronze Horseman”) by Aleksandr Pushkin (Russian)
32. “Herbst” (“Autumn”) by Rainer Maria Rilke (German)
33. “Romance de la luna, luna” (“Ballad of the Moon Moon”) by Federico García Lorca (Spanish)
34. “The Four Friends” by A.A. Milne

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