Category: reason

The Yale Journal on Regulation has just posted my contribution to the “Notice & Comment” blog symposium on Law & Leviathan by Cass Sunstein and Adrian Vermeule.  The other symposium contributions to the symposium may be found here.  I perviously blogged on the symposium here.

My contribution to the symposium is title “Defensive Crouch Administrativism.” Here is a taste:

The administrative state is under siege. In Law & Leviathan: Redeeming the Administrative State, Professors Cass Sunstein and Adrian Vermeule attempt a rescue. In the face of a “fundamental assault” on the premises of administrative law—an assault so severe they deploy that description twice within the span of three pages—Sunstein and Vermeule seek to explain why administrative law, in operation, is fundamentally moral and sound. The heart of some modest critiques may be true, they concede, but the leviathan of the book’s title is sufficiently constrained by law to preserve its moral legitimacy.

Rather than offer the full-throated defenses of the administrative state each has offered elsewhere, in Law & Leviathan Sunstein and Vermeule suggest administrative law has developed a set of “surrogate safeguards” that enable the administrative state to protect public welfare while preventing the worst abuses of bureaucratic excess. These safeguards do not derive from constitutional text, however, nor are they to be found in the Administrative Procedure Act (APA), but they are contained in administrative law doctrine as it has developed over the past 70 years. . . .

While situating the origins of such surrogate safeguards in the APA-era, when pointing to examples our authors sometimes focus on more recent doctrinal developments, including some they themselves opposed. As a consequence, parts of their argument seem to be something of a rearguard action, meant to preserve as much of the administrative state—and agency discretion—as can be salvaged in an age in which devotees of the New Coke may seem ascendant. Nowhere is this more clear than with their treatment of Auer deference, under which courts are obligated to defer to an agency’s reasonable interpretation of its own ambiguous regulation.

You can read the whole thing here.  I will also have a longer review of their book in Regulation.

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When Minneapolis Police Officer Derek Chauvin was found guilty on all counts of killing George Floyd, it was a victory not just for justice but for free speech—a freedom currently threatened by a bipartisan coalition of federal legislators.

That’s the compelling argument made by Michael Socolow, a communications and journalism professor at the University of Maine:

It was the culture and tradition of U.S. civil liberties and media freedom that played an essential role in protecting Frazier’s ability to record and retain possession of the video, and the capability of commercial corporations to publish it.

Had the same events transpired in China, Saudi Arabia, Russia, Singapore or elsewhere, nobody might ever have learned of Floyd’s fate.

Socolow appreciates how the ubiquity of cell phones and other recording devices has made it easier to capture official malfeasance, but he stresses that the real difference-maker is citizens’ ability to distribute what they capture over platforms such as Twitter, Facebook, and YouTube. These sites are protected by Section 230, the 1996 law that gives websites legal immunity for most user-generated content while also giving them maximum latitude to moderate content as they see fit. Section 230 is often called the “26 words that created the internet” and “the internet’s First Amendment.”

Socolow notes that both Joe Biden and Donald Trump have called for the repeal or evisceration of Section 230, as have such strange bedfellows as Sens. Elizabeth Warren (D–Mass.), Ted Cruz (RTexas), Josh Hawley (R–Mo.), and Vice President Kamala Harris.

Socolow also tells a fascinating story from a century ago. In Minneapolis (of all places), Jay Near, the rabidly anti-Semitic editor of The Saturday Press, thought the police were part of a Jewish cabal. Near and his partner were blocked under Minnesota’s “public nuisance law” from publishing their admittedly fact-free and defamatory charges, but they ended up winning a landmark Supreme Court case. In Socolow’s words, the Court ruled that “the U.S. Constitution allowed the abuse of press freedom in order to protect the most vibrant and robust public discussion possible.”

Modern press freedom was born with that decision, says Socolow. “Had Minnesota’s Public Nuisance Law survived Near’s challenge,” he writes, it “very well might have prevented publication of [Darnella] Frazier’s video [of Chauvin murdering George Floyd]. Those images could easily have been deemed ‘obscene,’ or a ‘malicious’ or ‘scandalous’ incitement to violence.” Under Section 230, he adds,

defamatory accusations, negligent misrepresentation, intentional nuisance, dangerous misinformation and even content intended to incite emotional distress can be posted without Facebook, Twitter, Instagram or other companies being sued or held civilly liable.

For better or worse, Section 230 establishes media freedom across the internet in the U.S. And it is this law, built on the traditions of media freedom, that allowed Darnella Frazier—and all citizens who follow in her footsteps—to stand up to the government in ways previously unimaginable.

Publishers and individuals can be sued for libelous and false allegations once they are made public, but the onus is heavily stacked against presumptively banning such speech, especially when it involves public officials. Socolow’s account shines a harsh light on government actors’ attempts to limit what can be shared online: It’s not about protecting the little people, but those in power.

As Socolow concludes,

The direct line from Minneapolis in the 1920s to Minneapolis in the 2020s is the notion that protecting people’s rights promises to foster an active, aware and engaged citizenry—and that violating those rights by repressing or censoring information is deeply anti-American.

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The United Federation of Teachers (UFT), the public sector union that has helped keep my daughters out of classrooms for most of the 2020–21 school year, issued its long-awaited endorsement for New York mayor on Monday: NYC Comptroller Scott Stringer.

“Educational policy is crucial, but we need a mayor who understands how the city works,” the UFT explained in a tweet. To which a beleaguered resident of Gotham might counter: Or maybe we need a mayor who understands that the city doesn’t.

The New York Times‘ news pages described the endorsement as “a much-needed boost” to Stringer’s campaign, which seems oddly inflationary given the UFT’s desultory record in picking Democratic primary winners. Odder still is the open hostility that many in the media are directing toward the front-runner in this race, who also happens to be the only candidate bluntly criticizing the teachers union for its role in shuttering schools: former 2020 presidential aspirant Andrew Yang.

“Yang’s prominence, The New Republic‘s Alex Pareene confessed last week, “depresses me.” Why? Because it’s embarrassing for a polity that takes nuts-and-bolts governance so seriously to swoon over a celebrity candidate.

“As mayor, Yang would have to figure out how to get lead paint and mold out of the city’s public housing system, how to design safer streets, how to make the buses run more efficiently, how to collect garbage, how to assign children to public schools and operate them fairly, how to manage the paramilitary known as the NYPD, and what to do with the atrocity known as Rikers Island,” Pareene wrote wearily. “And, for all the talk of his ideas, he has not shown that he has thought very much about any of those parts of the job.”

MSNBC’s Joe Scarborough, too, decried Yang’s lack of relevant experience.

“We’ve got, like, the most important mayor’s race in New York City probably in the last 50 years, maybe 100 years, I don’t know….[And] I mean, you and I could do a better job running New York City than Andrew Yang,” the Morning Joe host told a nodding Donny Deutsch Monday. “You want that mayor to be competent, you want them to know what they’re actually doing….It’s one thing running for president and putting some quirky ideas out there and getting some media attention, but man, when you’re running New York City, again, I’m talking competence.”

I can think of other c-words when clanging along the city’s busted streets, waiting for trains that never come because we’re still wiping down surfaces to prevent COVID, or trying to sort through the latest turf squabble between the Democratic mayor and the Democratic governor over a pandemic that hit the five boroughs harder than anywhere else in the United States. Crime is up, population is down, school buildings are still half-closed, subways are increasingly gross (wipedowns notwithstanding), tourism is gutted, Midtown is deserted, and public-facing businesses remain subject to arbitrary restrictions. And you’re talking competence?

Seeing the political class attempt to cope with what Slate this week called “the bewildering rise of Andrew Yang” is a storyline familiar enough that even politicians and journalists hear the echoes.

“We are creating a Donald Trump with Andrew Yang,” warned fellow mayoral candidate Eric Adams, the Brooklyn borough president, earlier this month. “That’s what the media did with Donald Trump. The same thing you complain about—how did he get elected?—was because you covered Donald Trump as though he was doing celebrity show and not running for the presidency. The media is doing the same thing right now.”

Candidate Maya Wiley, the former MSNBC analysts who is clumped with Adams and Stringer in the second tier of candidates behind Yang, is also playing the Trump card. “Our city deserves a serious leader,” Wiley spokesperson Julia Savel said earlier this month, “not a mini-Trump who thinks our city is a fun play thing in between podcasts.”

You’d think by now we’d have enough practice with outsider populists upending political expectations, but the message has not yet sunk in. A polity alienated, desperate, and/or bored enough with the status quo will flock to the unpolished celebrity not despite his inability to sound and act like the political establishment, but because of it. Every departure from the normal script reinforces the notion that at least he’s not one of them, especially after his competitors and the press have chewed on it.

Such a phenomenon, especially after the Trump experience, should spur journalistic examination of the political-class failure that made such a candidacy attractive in the first place. After all, Stringer, Adams, and Wiley, like the two-term mayor they aim to succeed, are each creatures of the New York political establishment who understand how the city works. And yet voters don’t seem to value that experience. Sounds like an interesting topic for exploration!

Instead, you have a series of comically exasperated headlines—”Andrew Yang leads new NYC mayoral poll — despite string of gaffes,” “Andrew Yang leads the New York mayoral race despite missteps,” “Yang stays atop New York mayoral field – through early stumbles and rookie mistakes“—mixed with pity-inducing attempts at gotcha journalism. How dare he pose for pictures with the Trump-supporting Naked Cowboy!

As with Trump, the sheer volume and tenor of the media attacks against Yang can serve to make him more sympathetic, or at least cause one to root for the commentators’ continued disappointment.

“Fundamentally,” the Brooklyn freelancer Alex Yablon wrote for NBC’s website, “Yang champions the same business-class neoliberalism that has reigned since the 1975 fiscal crisis. This is frustrating given that New Yorkers actually have a chance to push our political, social and economic order into the 21st century.”

Yang is a piñata for people who use phrases like “bro culture,” hate Bitcoin because of climate change, and believe that testing is a tool to segregate schools. In other words, he definitely will not win the Brooklyn Twitter primary.

But he may well be the next mayor of New York. If he does, that would be a splendid opportunity for journalists to examine the gap between their tastes in political manners and voters’ priorities in addressing problems. Judging by the last half-decade’s trajectory in media self-conception, it will likely be a road not taken.

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Mass public shootings are horrifying, seemingly random events with high casualty counts, and for that reason they attract much more press and political attention than far more common kinds of lethal violence, even though they account for a tiny percentage of homicides and gun deaths. A new analysis by RAND Corporation economist Rosanna Smart and senior behavioral scientist Terry Schell calls attention to some of the ways in which the disproportionate emphasis on crimes like the recent massacres in Atlanta, Boulder, and Indianapolis distorts and confuses the debate about gun control.

Research on mass shootings in the United States begins with the problem of defining them. Seven databases that Smart and Schell discuss use seven different definitions based on five different casualty thresholds, all of which consider the number of people killed and some of which also consider nonfatal injuries or the killer’s motivation. Smart and Schell note that “using definitions that differ in their thresholds for the number and type of victims or the circumstances around the incident results in vastly different estimates of how often mass shooting events occur, how the rate has changed over time, and incident characteristics.”

Based on the narrowest definition considered by Smart and Schell—which requires four fatalities aside from the perpetrator and excludes armed robbery, gang violence, and domestic violence—there were six mass shootings in 2019. Based on the broadest definition—four people injured or killed, including the perpetrator—there were 503.

The wide range of definitions means that people are often talking about different things when they talk about mass shootings. After last week’s attack in Indianapolis, for example, CNN created a graphic that indicated the U.S. had seen 22 “mass shootings in the past month.” California Gov. Gavin Newsom tweeted that graphic with the comment, “What ‘getting back to normal’ in America means after a pandemic.” A different CNN tally upped the number of “mass shootings” since mid-March to “at least 45,” based on a definition that covers incidents in which “four or more people are shot, wounded, or killed.”

CNN’s count includes many crimes that do not fit the stricter definitions and do not jibe with what most people probably imagine when they hear the phrase mass shooting. For example, CNN counted a robbery-related shooting at a motel in Gresham, Oregon, that injured four people but killed no one; a drive-by shooting in Stockton, California, that caused five nonfatal injuries; an argument-related shooting at a Dallas nightclub that killed one person and injured seven others; and a shooting outside a sports bar in Philadelphia that injured seven people after “an altercation inside the venue.”

CNN’s definition is defensible for some purposes. But by presenting this tally in the context of the April 15 attack at a Federal Express sorting facility in Indianapolis, which killed nine people, CNN left the misleading impression that 44 similar crimes had occurred in the previous month. In reality, three of those shootings resembled the Indianapolis attack, meaning that they killed four or more people at random in a public place.

Definitions are also crucial when considering trends in mass shootings. “The data from multiple studies suggest a slight increase in the incidence rate of mass public shootings over the past four decades,” Smart and Schell write. “From 2016 to 2018, the annual rate of mass public shooting incidents was about one incident per 50 million people in the United States [based on data collected by criminologist Grant Duwe]. Considering the number of fatalities in these shootings, this corresponds to approximately 0.4 percent of all homicides, or approximately 0.2 percent of all firearm deaths, over that period.”

Meanwhile, “using an expanded definition of mass shootings that includes domestic- or felony-related killings, there is little evidence to suggest that mass shooting incidents or fatalities have increased.” If news outlets like CNN use a consistent definition, in other words, they cannot reasonably assert that mass shootings are on the rise while simultaneously claiming that “at least 45” happened between mid-March and mid-April.

Another complication in trying to figure out whether mass shootings have become more common is that information about recent crimes is more accessible than information about older crimes, a bias that may create the illusion of an upward trend. “Because it should be relatively easier to identify more-recent shootings with few fatalities, a low casualty threshold will tend to systematically bias estimates of the number of shootings upward over time,” Smart and Schell note. “Even when using a higher-fatality threshold, mass shooting data sources that rely solely on news reports to identify cases also appear to systematically undercount incidents from earlier periods.”

Policies that aim to prevent mass public shootings, such as expanded background checks and “red flag” laws, often focus on stopping would-be perpetrators from obtaining firearms. But those policies are based on the mistaken premise that people inclined to commit mass murder can be distinguished from millions of other people with similar traits.

“Even if we did have definitive and complete data sources on the characteristics of all mass shooting incidents, it is still likely to be exceedingly difficult to identify useful predictors of mass shootings,” Smart and Schell write. “With the exception of male sex, risk factors that appear to be overrepresented among mass shooters relative to the general population are often still uncommon among offenders on an absolute level. Thus, even if one could find a way to prevent individuals with a documented serious mental illness from committing a mass shooting…most mass shootings would still occur because only a fraction of mass shootings are committed by individuals with a documented history of serious mental illness.”

Another approach is restricting or banning firearms or accessories that are frequently used in mass shootings. But as Smart and Schell note, “handguns are the firearm most commonly involved in active shootings and mass shootings.” They are also the most common type of firearm used by ordinary criminals and the most common type used by law-abiding Americans for self-defense. For the latter reason, the Supreme Court has repeatedly said, handgun bans are unconstitutional.

Smart and Schell cite studies indicating that so-called assault weapons are used in 10 percent to 36 percent of mass shootings. Even if that percentage could be reduced, it is quite unlikely that the result would be fewer deaths, given the arbitrary nature of “assault weapon” bans, which leave would-be mass shooters with plenty of equally lethal alternatives.

Smart and Schell note that “the use of large-capacity magazines (LCMs)”—defined as magazines that hold more than 10 rounds, which are standard for many of the most popular guns sold in the U.S.—”is more common in mass public shootings and high-fatality mass shooting incidents than it is in firearm crimes overall.” They say “descriptive evidence that mass shootings involving firearms equipped with LCMs result in significantly higher injury and fatality rates may suggest potential benefits of restricting access to LCMs,” although “it may be that the choice to use LCMs reflects more-lethal intentions of the shooter.”

The rarity of mass public shootings makes it difficult to assess the impact of these or other policies. “Even if a state passed a policy that had large effects on mass public shootings (e.g., it cut the probability of such incidents in half), it is still unlikely that a study of that policy using appropriate statistical methods would find it to have a statistically significant effect,” Smart and Schell write. “This occurs because most states already have zero mass public shootings in any given year, and, when the rate in the pre-period was already at, or very close to, zero, it is not possible to detect a decline in the risk of such shootings that is due to the policy—no matter how large that effect may be. This pervasive lack of statistical power can result in a published literature characterized by exaggerated effect sizes for any effects that are found to be statistically significant, and these significant estimates, in many cases, may misidentify the direction of the true effect.”

Where does that leave us? Smart and Schell suggest that the focus on preventing this particular kind of homicide is misplaced.

“Precisely because mass shootings are so rare and it is so difficult to predict exactly who will perpetrate them, the overall costs and benefits of any policy to address them are likely to be driven by the policy’s effects on a broader set of far more-common outcomes, such as overall homicide, suicide, domestic violence, and population health,” they write. “Improved treatment for mental health problems or suicidality might reduce certain types of mass shootings, but such policies may also reduce far more-common forms of homicide, suicide, and crime and may also improve economic productivity and social well-being. Similarly, policies aimed at reducing domestic violence or preventing crime are worth pursuing for those benefits, and they may also reduce the incidence of some types of mass shootings (i.e., familicides [and] felony-related killings). Focusing efforts on implementing public policies that reduce violence more broadly, rather than making policy decisions based only on the most-extreme forms of such violence, may not eliminate mass shootings but may reduce their occurrence and lethality and ultimately save more lives.”

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We’re rapidly getting to the point where America’s supply of vaccines will outstrip demand for them. At the same time, COVID-risky bars, concert halls, and theaters are still kept closed by government order.

Could these two problems solve each other?

Bill Duggan, the owner of the Madam’s Organ Blues Bar in Washington, D.C., thinks so. On Tuesday, he sent an open letter to Mayor Muriel Bowser asking that she allow music venues like his to reopen on the condition that staff, performers, and customers all have their shots.

“This would be a cost-free and very effective incentive to vaccinate,” Duggan wrote. “If, by just getting vaccinated, employees could return to work, artists could perform, and patrons could again visit their favorite bar, restaurant or business, many, if not most, will choose to get the shot.”

The pandemic has been especially hard on the city’s concert halls. Unlike standard restaurants or bars, which can still draw in customers with outdoor dining and, more recently, some limited indoor capacity, music venues have had their main attraction effectively banned since March.

Bowser did roll out a live entertainment pilot program at a few select businesses in September, but it was laughably restrictive. Venues were limited to 50 people (including staff and performers), and patrons had to be seated 20 to 30 feet from the stage.

A number of famous D.C. jazz bars and concert halls have been forced to close permanently. Madam’s Organ has managed to hang on despite being totally closed since March 2020.

Duggan tells Reason he chalks up his venue’s survival to the fact that, unlike a lot of concert hall operators, he also owns his building. A side gig as a real estate developer has also enabled him to cover the roughly $10,000 in monthly expenses he still has on a business bringing in zero revenue.

Having to go over a year without being able to host a single show comes with non-monetary costs too.

“People know that they can come [into Madam’s Organ] any time and hear some of the best music they’re ever going to hear,” he says. “I didn’t go into the business because I had a passion for hamburgers.”

To expedite the reopening of his business, Duggan has been running his own mini-vaccine campaign, helping some 40 employees and performers schedule appointments anywhere shots were available—from Baltimore to northern Virginia—and organizing transportation there and back.

He says almost all of his staff and performers have been vaccinated. That’s a better ratio than the district as a whole, where only 30 percent of residents have been at least partially vaccinated as of Monday.

Meanwhile, the D.C. government continues to take the most tepid steps toward reopening venues. Come May 1, seated live entertainment will be allowed to open up at 25 percent capacity, and live music will be allowed to perform “near” outdoor diners.

These capacity restrictions—and requirements for people to be far away from the stage—make this slight easing of COVID regulations almost meaningless, given the size of most venues, says Duggan.

“The average commercial townhouse in Washington, D.C., is 20 feet wide,” he says. “Unless I can figure out a way to hang up the three or four people that could fit into that space on the wall, I’m shit out of luck.”

Letting venues reopen with some sort of private vaccine requirement would do a much better job of keeping people safe, while allowing him, his employees, and the district’s artists and musicians a chance to ply their trade.

Duggan says that customers could be checked at the door for proof of vaccination, whether that’s on a paper card or smartphone app. Venues already have to check for proof of age, he notes, and the city’s Alcoholic Beverage Regulation Administration is already set up to ensure they’re in compliance. He adds that businesses are already allowed to decide who they let into their space (within the bounds of anti-discrimination law) and that he’s not asking for any special favors.

The D.C. government is “spending all this energy and money going door to door to convince people to get the vaccine,” says Duggan. “At the same time, they’re saying you need to get the vaccine, they’re saying but if you get it, continue to wear your mask, social distance, don’t travel, all these restrictions stay in place.” Allowing his approach, he he argues, would be a “win-win-win.”

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It’s a good thing Americans don’t have to wait for the federal government’s hand-picked suppliers of vaccines and syringes to end the COVID-19 pandemic. Those operations are not going well.

First, let’s check in with ApiJect Systems Corp, a Connecticut-based medical supply company that got a $138 million government contract last year to develop a newfangled syringe that would be pre-filled with COVID-19 vaccine. You might think that’s a lot of money simply to save the few seconds it takes to fill a syringe with vaccine—but the real goal of the contract was to reduce America’s supposedly debilitating (and vastly overstated) reliance on medical equipment made in other countries.

The project will “help significantly decrease the United States’ dependence on offshore supply chains and its reliance on older technologies with much longer production lead times,” a Pentagon spokesman told NBC when the contract was announced last May. Why trade with other countries when we can make better syringes here in America, and do it faster too?

That is exactly what the proponents of industrial policy keep saying. So how is it working out?

Not great. More than 215 million doses of COVID-19 vaccine have been administered to Americans, but not a single one has been delivered via the fancy new syringes that ApiJect Systems is getting paid to produce. In fact, NBC reported on Wednesday that ApiJect has yet to produce a single syringe.

It gets worse. As part of an overall package of government contracts and federal loans that NBC says totaled $1.3 billion (ApiJect says the figure is lower), the company was supposed to build a manufacturing facility that would not only meet the COVID-19 pandemic head-on but would eventually provide syringes prefilled with other vaccines too. A spokesman for the industrial park in North Carolina where the facility was supposed to be built tells NBC that there’s no factory there.

Fortunately, America has access to plenty of syringes already—thanks to those awful global supply chains everyone is always complaining about.

Although lots of syringes are made in the United States—the U.S. is the world’s second-leading exporter of the product, according to the World Bank—we also imported more than $600 million of syringes from China, Mexico, Germany, and other countries in 2018, the most recent year covered by the World Bank’s trade database. That’s how the global supply lines for lots of medical goods work. Far from being over-reliant on drugs or equipment from any one part of the world, America’s medical supply chains are vast, complex, and resilient—as the pandemic has illustrated.

Meanwhile, politicians who want to break those supply chains would leave Americans dependant on a few hand-picked suppliers at home.

Speaking of which, how are things going at Emergent BioSolutions, the federal government’s hand-picked manufacturer of American-made vaccines?

Oh, boy. “Federal regulators have found serious flaws at the Baltimore plant that had to throw out up to 15 million possibly contaminated doses of Johnson & Johnson’s coronavirus vaccine,” The New York Times reports. “Production is now on pause in the United States, and all vaccines manufactured at the plant have been quarantined.”

Unlike ApiJect, which received government funds during last year’s rush to throw as much money at possible pandemic-ending ideas, Emergent Biosolutions has been on the federal dole since 2012 for the express purpose of domestic vaccine production in the event of a viral outbreak. That it has so far been unable to produce a single usable dose of vaccine is a damning illustration of the failure of industrial policy. This is the ultimate “you had one job” situation.

Under industrial policy, businesses become successful by lobbying for government contracts rather than by making products that work. Emergent BioSolutions “spent much of the last two decades cornering a lucrative market in federal spending on biodefense,” the Times reported earlier this month. But while getting fat on government contracts, audits found “a persistent problem with mold in areas required to be kept clean, poor disinfection of some plant equipment leading to growth of bacteria, the repeated approval of raw materials that had not been fully tested, and inadequate training of some employees”—issues that likely culminated in the contamination problems that have plagued Emergent’s COVID-19 vaccine production.

Once again, it’s only because the United States has access to a global system of supply chains for vaccines—most of which are produced in Belgium and Germany—that we are coming out of the pandemic as soon as we are.

Nationalist industrial policy might make for good politics in some places, but it has a long track record of failure. I would much rather have a German-made COVID vaccine delivered through a Chinese-made syringe right now than be left waiting for ApiJect and Emergent to finally accomplish whatever they’re doing with hundreds of millions of tax dollars.

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