Category: reason

“The goal of this book is to explain why we keep falling for the ideas that psychologists tell us about the ways they’re going to help fix society,” says Jesse Singal, author of The Quick Fix: Why Fad Psychology Can’t Cure Our Social Ills. “They’ll offer some incredible new way to fight racism or to improve education or to improve gender equity in the workplace. There’s a rush of attention and often a rush of research dollars. Everyone gets really into them. There’s the NPR, New York Times coverage. And then a few years later, more research comes out. We realize the idea was barely true, if that, and it ends up having wasted a lot of time.”

Singal shows how the underlying research that propelled phenomena such as “power posing” (which promised to empower women by changing their posture), the self-esteem movement (which tried to reform poorly performing students and even criminals through enthusiastic, unearned praise), and the Implicit Association Test (which purports to measure “unconscious bias” against blacks and other marginalized groups) often can’t be replicated and sometimes doesn’t even measure what it purports to address.

“Just by dint of our brains, we’re always going to be susceptible to less-than-rigorous, monocausal accounts of a lot of our problems,” says Singal, who writes for outlets such as New York, The Atlantic, and Reason and co-hosts the podcast Blocked and Reported. But, he tells Nick Gillespie, by laying out the predictable ways in which research goes from the lab to the media to the culture and politics, he hopes to sharpen our critical faculties and improve our media literacy.

Narrated by Nick Gillespie, edited by John Osterhoudt, color correction by Regan Taylor, additional graphics by Isaac Reese

Photos: Juhan Sonin/Flickr/Creative Commons; ID 188393818 Zalexis/Dreamstime.com; Thatcher Cook/Creative Commons; Erik Hersman/Flickr/Creative Commons; PopTech/Flickr/Creative Commons; Glen Stubbe/ZUMA Press/Newscom; ID 128591411 Monkey Business Images/Dreamstime.com; Dick Schmidt/ZUMA Press/Newscom; Dennis Van Tine/LFI/Photoshot/Newscom; Steven Branbe/ZUMA Press/Newscom; JIMI LOTT/KRT/Newscom; ID 199480734 Mikechapazzo/Dreamstime.com; Kilworth Simmonds/Flickr/Creative Commons; Giorgio Fochesato/Westend61 GmbH/Newscom

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A month and a half ago, Texas Gov. Greg Abbott (R) lifted all statewide COVID-19 restrictions, prompting widespread panic from many Democrats—including President Joe Biden—as well as unofficial members of Team Blue within the mainstream media and public health establishment. Liberals confidently predicted that the masks were coming off way too soon, and COVID-19 would swiftly make a comeback in the Lone Star State.

Well, nope: COVID-19 deaths and cases continue to fall in Texas, even without a mask mandate or capacity restrictions on businesses. The same is broadly true of Florida, which relaxed its restrictions all the way back in September and has managed to weather the pandemic more successfully than super locked down states like New York and California.

This is good news! It’s more evidence that warmer weather does make it harder to spread COVID-19—in large part because the heat and sunshine allow people to socialize outdoors, where there is a significantly lower risk of transmission. It also shows that the vaccines are working. Fully vaccinated people are essentially immune from serious disease or death, and according to the latest data, they are very unlikely to carry or transmit COVID-19 at all. The message to the unvaccinated should be: Go get vaccinated. The message to the vaccinated should be: Rejoice! You can go back to normal life.

But the frustrating truth of the matter is that Team Blue doesn’t want to hear this. Many people—predominantly liberals—who claim to Follow the Science and Trust the Experts no matter what are nevertheless captivated by pandemic panic porn. By asserting, for instance, that social distancing and masks should be mandatory even for the vaccinated, they bizarrely fixate on the minuscule risk of post-vaccination infection.

Fully vaxxed! #HousePfizer and I don’t leave home without my mask, my undermask, and the will to make it fashion. Now let’s beat this bastard covid-19, people!! ???????? pic.twitter.com/et7iVZ1s6W

— Joy-Ann Pro-Democracy & Masks Reid ???? (@JoyAnnReid) April 18, 2021

Masks have been an important tool in slowing the course of the pandemic. There’s a strong case to be made that the unvaccinated should still wear them when they gather in large numbers in indoor spaces. But there’s never been a particularly good reason to require masks outdoors, and that’s doubly true for the vaccinated. Could a vaccinated person suffer a breakthrough infection, and then spread the disease during outdoor contact to an unvaccinated person who gets very sick or dies? Yes, it’s theoretically possible, but we’re starting to get into hit-by-lightning chances here. In no other context would we accept that this level of safety is insufficient.

On his show over the weekend, HBO’s Bill Maher delivered a terrific monologue on the subject of COVID-19 paranoia among Team Blue. Maher referenced a fascinating December 2020 survey result from Gallup that found Democrats wildly overestimated the odds that someone who contracts the virus will need to be hospitalized. Some 41 percent of Democrats thought the hospitalization rate was higher than 50 percent—in reality, it’s between 1 and 5 percent.

“If the right-wing media bubble has to own things like climate change denial, shouldn’t liberal media have to answer for how did your audience wind up believing such a bunch of crap about COVID?” asked Maher.

Whenever I tweet that post-vaccination outdoor masking is unnecessary, I am inundated with hostile feedback from liberals who stridently assert that the performance is important because it sends the right message and puts other people at ease. Well, the Transportation Security Administration (TSA) probably puts some people at ease, too—but it shouldn’t, because removing our shoes and belts before we get on a plane doesn’t make us any safer at all. The TSA is a massive waste of time, money, and energy, and the American people have put up with it for more than 20 years. If we don’t want pandemic restrictions to become the new airport security, there needs to be pushback: Get vaccinated, and then get back to normal.

I don't want politics mixed in with my medical decisions. And when all of our news sources for Covid information have an agenda to spin us, you wind up with a badly misinformed population. #BreakingNews #ScaredStraight pic.twitter.com/xnPZOafziI

— Bill Maher (@billmaher) April 17, 2021

FREE MINDS

Facebook drew criticism for preventing users from sharing a New York Post story about a Black Lives Matter founder’s considerable property holdings. The move was reminiscent of Twitter’s move to suppress the Hunter Biden laptop story. According to the Post:

This decision is so arbitrary as to be laughable. Does Facebook know how many newspapers, magazines and Web sites highlight the real estate purchases of the rich and famous? The next time People magazine covers Kim Kardashian’s latest mansion purchase, will it violate any community standards? How about running a picture of the resort Ted Cruz is staying at?

FREE MARKETS

The economy is picking up steam, according to The New York Times:

First-quarter earnings season picks up steam this week, with analysts expecting that profits for S&P 500 companies rose roughly 27 percent in the three months through March, compared with a year earlier when the pandemic sent corporate earnings into a tailspin.

Companies such as Coca-Cola, United Airlines, Netflix, AT&T and American Express all slated to issue results this week, offering a relatively well-rounded look at the state of corporate America in the early days of what could be a powerful year for the U.S. economy. It might also help set expectations for the stock market, after a big rally already this year.

QUICK HITS

• The trial of Derek Chauvin is reaching the endgame: Both sides will present their closing arguments beginning at 10:00 a.m. on Monday.

• A verdict could prompt NBA teams to postpone their games.

• Minneapolis schools plan to close later this week as well.

• Planned Parenthood has apologized for founder Margaret Sanger’s association with white supremacist groups and eugenics.

• Former President Donald Trump supports Biden’s decision to bring back the rest of the troops from Afghanistan.

• Top COVID-19 adviser Anthony Fauci said that gun violence is a public health issue.

• Here’s what Sen. Kyrsten Sinema (D–Ariz.) was up to this weekend:

Kyrsten Sinema, the Senate’s most colorful member, posts a pic of herself on instagram rocking a “F*** Off” ring & sipping what looks like Sangria pic.twitter.com/ec6AkEPUiE

— Melanie Zanona (@MZanona) April 18, 2021

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Most Americans now favor legalizing marijuana, including large majorities across the political spectrum. Just this year, New Mexico, New York, and Virginia have eliminated state bans and opened the door to legal markets in the stuff. Even Congress is considering federal legalization (though the White House isn’t necessarily on board). Via the ballot box and through legislation, authorities in the United States are reforming the treatment of marijuana and those who enjoy its use. But, as is so often the case, the impetus for change came much earlier—from scofflaws who did as they pleased, normalized the use of an illegal intoxicant, and revealed prohibition as unenforceable.

“Roughly half of adults (48%) say they have ever tried marijuana, the highest percentage ever,” Pew reported in 2013 after Colorado and Washington became the first states to defy federal law and legalize marijuana for recreational use. “Just two years ago, 40% said they had tried marijuana. In both 2003 and 2001, 38% said they had used marijuana.”

True, marijuana was available for medical use in a few states starting with the passage of California’s Prop. 215 in 1996, and in some jurisdictions “medical” was generously interpreted. But it’s obvious that marijuana was increasingly popular and ever-more widely accepted well before it was legally available even for nominally medicinal purposes.

“The possibility that marijuana use is on the rise is worrisome,” fretted the federal Office of National Drug Control Policy (ONDCP) in its 1994 Marijuana Situation Assessment. “Since marijuana is by far the most widely used illicit drug, small percentage increases in use mean that large numbers of Americans have crossed the line from not breaking the drug laws to breaking them.”

What troubled the ONDCP was that 9 percent of respondents to the National Household Survey on Drug Abuse admitted using marijuana in the previous year (a tighter measure than Pew’s “ever tried” question) in 1993. About 16.5 percent of men between the ages of 18 and 25 said they’d used marijuana in the previous month. 

“One possibility is that marijuana use is a barometer of public attitudes about illicit drug use,” mused the ONDCP. “If more people are smoking marijuana, it could reflect increased acceptance of illicit drug use in general.”

It’s fair to assume that more people were enjoying the illegal intoxicant as its use became more widely accepted, and that wider acceptance encouraged those so inclined to indulge. As people ignored the law, their actions normalized marijuana use and cast doubt on restrictive laws. Two years after the ONDCP report, California approved Prop. 215. Sixteen years after that, voters in Colorado and Washington swept away state laws against recreational marijuana. The feedback loop of scofflawry, normalization, and approval worked quite a bit of magic over those years.

To be honest, scofflaws have worked a lot of magic. In her 2005 book, Spirits of Defiance: National Prohibition and Jazz Age Literature, author Kathleen Drowne argued that mass resistance to the national ban on alcoholic beverages not only kneecapped the law, but also infused anti-authoritarianism into literature and the culture for years to follow. Likewise, gays and lesbians surreptitiously lived and loved when they were targeted by the law, and then famously (and righteously) stomped cops who raided the Stonewall Inn, ultimately precipitating liberalization. Gun laws have historically met widespread disobedience, keeping populations armed and politicians unhappy. And restrictions on exporting encryption were eased only after cryptographers illegally exported code—even printing it on T-shirts in acts of civil disobedience.

Willingness to break the law to do things that people know they have every right to do helps to make it acceptable for others to follow suit. As more people engage in illegal activities, those activities become less alien and threatening even to those who have no interest in joining the party and reveal legal restrictions as unenforceable. That makes it seem increasingly attractive to call off the cops and leave people alone to live their lives.

“Nearly 7 in 10 Americans (69–25 percent) think the use of marijuana should be made legal in the United States,” say pollsters at Quinnipiac University. “The numbers among registered voters are similar (70–24 percent), and they mark a record level of support for marijuana legalization since Quinnipiac University began polling on this issue in December of 2012.” The poll finds that legalization is nonpartisan (almost a political unicorn in today’s polarized America) enjoying the favor of 78 percent of Democrats, 62 percent of Republicans, and 67 percent of independents.

Support for legalization rose through the decades of prohibition as Americans ignored the law in growing numbers. According to Gallup, the percentage of the population advocating for marijuana legalization rose slowly but steadily from 12 percent in 1972 to its current large majority. The shift in public opinion picked up steam in recent years as states moved to reform their laws, but there would have been little constituency for legalization if millions of Americans hadn’t already been doing as they pleased without regard for the legal status of marijuana.

Scofflawry still does good work in a world of legal, but often rules-bound, marijuana sales. Though Massachusetts has legalized weed, state officials predictably burdened the market with red tape and high taxes. The result is that the state still enjoys a thriving black market.

“An estimated 68 percent of Massachusetts marijuana sales this year have taken place outside of the state-regulated market, according to an analysis done for CommonWealth by cannabis market research firm BDSA,” the magazine reported in November 2020. “Britte McBride, a member of the state Cannabis Control Commission … said Massachusetts’s high prices are somewhat unavoidable because of the cost of complying with strict state regulations on security, testing, packaging, and labeling.”

Lingering black markets elsewhere spurred officials to reduce regulations and lower taxes so that legal dealers can successfully offer consumers the prices and convenience offered by underground competitors. Massachusetts officials may be learning similar lessons: They agreed to allow home delivery of marijuana.

Marijuana prohibition is on its way out after years of fading support and rising defiance, largely courtesy of those who ignored the law. But other authoritarian restrictions remain, and others will undoubtedly emerge from the creative imaginations of those attracted to government office. The harm they do can best be minimized, and ultimately ended, by further acts of scofflawry.

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From Magistrate Judge Lauren Louis (S.D. Fla.) in Harapeti v. CBS Television Stations, Inc., decided earlier this month:

This case is brought by Plaintiff Silva Harapeti on behalf of herself and other similarly situated individuals against CBS Television Stations, Inc. and CBS Broadcasting, Inc. … for unpaid wages and overtime due to misclassification of employee status under the Fair Labor Standards Act; and on behalf of Plaintiff individually for unlawful, retaliatory discharge in violation of the FLSA…. [This] Court [has] conditionally certified a class of employees who worked for Defendants at WFOR-TV as a Freelance Television Journalist or Producer at any time within the three years prior to the filing of this action, and allowed individuals from within this conditionally certified class to opt-in to the litigation by filing an opt-in notice pursuant to 29 U.S.C. § 216(b).

Now, Plaintiff seeks to file these opt-in notices either pseudonymously or under seal to conceal the identities of the opt-in plaintiffs from the Defendants and the public. Plaintiff’s basis for this request is that there are a “body of putative opt-in Plaintiffs and/or witnesses within WFOR-TV and outside of the Miami, Florida television market who desire to join this lawsuit and may join this lawsuit provided that they remain anonymous to the public because they fear retaliation or fear being ‘blackballed’ in the industry for participating in litigation against a media conglomerate such as the Defendants in this action.” …

“Generally, parties to a lawsuit must identify themselves in their respective pleadings. Fed. R. Civ. P. 10(a) requires a complaint to ‘include the names of all the parties.’ This rule serves more than administrative convenience. It protects the public’s legitimate interest in knowing all of the facts involved, including the identities of the parties.”  However, the Eleventh Circuit has found that there are certain exceptional circumstances that “give rise to the level necessary to overcome the presumption of openness in judicial proceedings or the explicit requirements of Rule 10(a).” Namely, “[a] plaintiff should be permitted to proceed anonymously only in those exceptional cases involving matters of a highly sensitive and personal nature, real danger of physical harm, or where the injury litigated against would be incurred as a result of the disclosure of the plaintiff’s identity. The risk that a plaintiff may suffer some embarrassment is not enough.”

In determining whether a plaintiff has a substantial privacy right that outweighs the customary and constitutionally-embedded presumption of openness, courts should look to the following factors: “(1) whether plaintiffs seeking anonymity are challenging governmental activity; (2) whether they will be required to disclose information of the utmost intimacy; (3) whether plaintiffs will be compelled to admit their intention to engage in illegal conduct and thus risk criminal prosecution; (4) whether the plaintiffs were minors; (5) whether they were threatened with violence or physical harm by proceeding in their own names and; (6) whether their anonymity posed a unique threat of fundamental unfairness to the defendant.”

Plaintiff’s Motion does not contend that the case involves matters of a highly sensitive nature nor that opt-in plaintiffs would face a real danger of physical harm. Instead, Plaintiff alleges a generalized fear on behalf of witnesses or opt-in plaintiffs of retaliation by their employers and being “blackballed” from their industry as a whole. However, such “generalized assertions of fear do not outweigh the customary and constitutionally-embedded presumption of openness in judicial proceedings.”

Plaintiff supports her Motion with two declarations, which evidence a toxic and extremely problematic work environment for many years preceding Plaintiff’s filing of this suit, but the evidence provided by the declarants falls far short of articulating the unique threat that might justify deviation from the presumption of openness. The declaration of Kirsten Cole describes her experience working as a full-time employee at WCBS-TV in New York from 2001-2010. Cole describes her successes as a journalist; states that she and other journalists at her station were not properly paid overtime in violation of their AFTRA (American Federation of Television and Radio Artists labor union) station contract; claims that after discussing this violation amongst fellow employees, she was wrongfully terminated on the basis of taking more vacation days than she was owed; states that after leaving WCBS-TV she began freelancing for a competitor; and further claims that she did not get offered a highly coveted job at CNN because of her previous boss—a claim that seems to be based solely on the fact that CNN questioned her about her departure from her previous job during her job interview.

Similarly, Harapeti’s declaration describes the activities alleged in her complaint in this case, as well as her allegations in the separate lawsuit filed against CBS Television, including pay violations. She also describes examples of stories she has been told by unknown sources at unidentified news stations from an unknown timeframe regarding intimidation, bullying, retaliation, and improper pay—none of which allegedly stemmed from joining a lawsuit. So while Plaintiff has advanced evidence of vindictive managers and worse, the retaliatory conduct described in the declarations all occurred before—and is necessarily unrelated to—any of the witnesses’ participation in a lawsuit, including Plaintiff herself, who attributes at least some of the consequences she suffered at the hands of Defendants to an event that occurred in 2016, and which had nothing to do with her complaints of unfair pay practices.

Not only is the proffered reason for anonymity generalized, the circumstances surrounding the litigation fail to meet any of the factors considered by the Court in determining whether the opt-in plaintiffs have a substantial privacy right that outweighs the presumption of openness. There is no challenge to governmental activity; the disclosure of intimate information is not required; there is no risk of criminal prosecution; there are no minors involved; and there is no alleged threat of physical violence or harm.

In her Reply, Plaintiff contends that cases in other judicial circuits have permitted litigants to proceed anonymously or pseudonymously to protect them against possible economic retaliatory harm. Other courts, however, have better reasoned that where a plaintiff seeks an economic benefit from the suit—a dollar recovery from a statutory cause of action—there is even less justification for allowing a plaintiff to proceed anonymously. See, e.g., Luckett v. Beaudet, 21 F. (D. Minn. 1998) (cited with approval by Judge Hill in concurrence in Roe v. Aware Woman Ctr. for Choice, Inc (11th Cir. 2001)). Furthermore, Plaintiff heavily relies on Does I thru XXIII v. Advanced Textile Corp. (9th Cir. 2000), to assert economic harm is a ground for anonymity. In that case, however, the plaintiffs did not just fear economic retaliation but, rather, retaliation of an “extreme nature” which included being “deported from Saipan, and arrested and imprisoned by the People’s Republic of China”; a fear which plaintiffs substantiated with evidence.

Furthermore, Plaintiff contends that because this is an FLSA collective action with a named plaintiff, Rule 10(a) is satisfied; and because opt-in plaintiffs need only to file their written consent to become a party plaintiff, opt-in plaintiffs should be treated differently and be allowed to file their consents anonymously. Plaintiff provides no support for this proposition, and unlike traditional class actions in which a few named plaintiffs represent a largely anonymous class, the FLSA specifically requires each individual additional plaintiff to affirmatively opt-in to a case by filing a written consent. 29 U.S.C. § 216(b) (“No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought”). As there is no dispute that opt-in plaintiffs are indeed parties to the lawsuit, the fact that one plaintiff is named does not alleviate or moot the presumption of openness in judicial proceedings.

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University of Chicago Press has just published “The Reconstruction Amendments: Essential Documents,” a two-volume collection of original historical documents relating to the framing, ratification and public understanding of the Thirteenth, Fourteenth and Fifteenth Amendments to the American Constitution. Prior to this publication no such collection existed. In this and three additional posts, I will explain the theory behind the collection, the nature of the included documents, and how scholars can use the collection to teach a basic course on the Reconstruction Amendments. My thanks to Eugene Volokh and the folks here at the VC for giving me this opportunity.

Ten years in the making, the completed volumes contain over four hundred original historical documents which collectively tell the story of America’s struggle to define and redefine the meaning of American freedom, national citizenship, constitutional federalism and the basic rights of all persons. Beginning with the antebellum public debates over slavery and the original Constitution, and ending with ratification of the Fifteenth Amendment, the two volumes open a window on the grand national debates which attended the second most important period of constitutional debate in American history. A great deal of this material, particularly documents relating to the ratification of the three amendments, has never before been published (or, in many cases, even identified).

The collection focuses on the public debates which drove and accompanied constitutional reconstruction. The extraordinary constitutional conversation that prompted the adoption of the three Reconstruction Amendments included the voices of presidents, governors, military officers, radical abolitionists like William Lloyd Garrison and Wendell Phillips, constitutional abolitionists like Lysander Spooner and Joel Tiffany, black civil rights activists like David Walker and Frederick Douglass, women’s rights activists like Francis Watkins Harper, Susan B. Anthony, and Elizabeth Cady Stanton, pragmatist Republicans and obstructionist Democrats, the participants in freedmen’s conventions and the equal rights conventions, southern newspaper editors and northern political scientists, as well as politicians like Charles Sumner, Thaddeus Stevens, James F. Wilson, James Ashley, John A. Bingham, Lyman Trumbull, Jacob Howard, and George S. Boutwell.

Volume One begins with the antebellum debates that set the stage for constitutional reconstruction. This includes antebellum debates over the nature of federalism, the role of slavery in the original Constitution, the meaning of citizenship, and the scope of national liberty. The second half of Volume One presents the legislative and public debates attending the framing and ratification of the Thirteenth Amendment. In my second post, I will describe some of the key documents in Volume One, including the first Thirteenth Amendment which would have constitutionally entrenched chattel slavery, and the extraordinary decision of the state of Wisconsin to nullify the federal Fugitive Slave Clause and invoke Madisonian federalism in support of anti-slavery state policy.

Volume Two presents the legislative and public debates over the framing and ratification of the Fourteenth and Fifteenth Amendments. These documents include not only the congressional debates (now word-searchable), but also the heretofore unavailable (or unknown) state ratification debates. Finally, I also have prepared a Teacher’s Manual with a model syllabus and teaching notes for a fourteen-week course on the Reconstruction Amendments.

In my next post, I will discuss the theory and content of Volume One, The Antebellum Constitution and the Thirteenth Amendment. This will be followed by a post on Volume Two, and then a final word on the collection and the available teaching materials.

For now, I close with a word about the title, “Reconstruction Amendments: Essential Documents.” In some cases, “essential” refers to the importance of the included documents themselves, such as the documents presenting the drafting debates of the Thirty-Ninth Congress.

In other cases, however, “essential” refers not to a particular document but to the essential importance of the issue discussed within that document. For example, for each amendment, I have included newspaper coverage of the framing and ratification efforts. These newspaper articles are meant to illustrate how closely the public was able to follow the framing debates, assess the arguments in favor of ratification, and consider the implications of failure or success. This contemporary public awareness is itself an “essential” aspect of constitutional reconstruction.

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