Category: reason

On Monday, in Freyd v. University of Oregon, a panel of the U.S. Court of Appeals for the Ninth Circuit split over whether a university’s practice of giving “retention raises”–salary increases to prevent faculty from accepting lateral offers at other schools–could constitute employment discrimination if, as alleged in this case, the practice produces pay disparities between men and women.

Judge Jay Bybee wrote the majority opinion, joined by District Court Judge Kathleen Cardone (sitting by designation). Here is how he sets the stage:

Jennifer Freyd is a Professor of Psychology at the University of Oregon (“the University”). Although she is a well-recognized academic and pioneer in trauma studies, the University pays Freyd several thousand dollars less per year than it does four of Freyd’s male colleagues, despite their being of equal rank and seniority. Freyd alleges that this gender disparity in pay is department wide and is caused by the University’s practice of granting “retention raises” to faculty as an incentive to remain at the University when they are being courted by other academic institutions. She further claims that female professors at the University of Oregon are less likely to engage in retention negotiations than male professors, and when they do, they are less likely to successfully obtain a raise.

Freyd sued the University alleging violations of, inter alia, the Equal Pay Act, Title VII, Title IX, and Oregon law.

The district court granted summary judgment for the University on all counts. The court’s majority, however, reversed the district court on several counts, finding that a reasonable jury could have concluded that the University of Oregon’s policies, including its practice of offering “retention raises,” violated federal or state employment discrimination laws because they produced pay disparities between male and female faculty who perform equivalent work.

Judge VanDyke wrote separately, concurring in part and dissenting in part. His opinion begins:

Jennifer Freyd is far from the typical employee arguing that she is being treated differently based on her sex. She is not merely a professor of Psychology, or even just a tenured professor of Psychology. She is a full professor of Psychology at the University of Oregon—the top echelon, crème-de-la-crème of her academic field. She is, one might say, in the big leagues of her profession. According to Dr. Freyd herself, her job at her elite level of academic achievement is marked by “considerable discretion and autonomy in developing and executing a unique research agenda and professional profile,” and “[n]o two people will exercise their discretion and autonomy in the same way.”

Just as we see with top professional athletes or the very best attorneys in their field, competition is fierce for leading academic talent. Universities understandably attempt to poach top dons from other schools by offering better pay and other benefits and opportunities, and the professors’ home institutions are often required to make comparable offers (called “retention raises”) to keep their own outstanding people—especially those who are willing to seriously entertain an offer to change institutions. This case effectively challenges that market-driven practice as violative of a host of federal and Oregon laws prohibiting sex-based discrimination.[FN1]

FN1. The majority criticizes what it characterizes as my “strong preference for a ‘market-driven practice.'” My preferences are unrelated to my pointing out the obvious here. The fact that an employment practice is “market-driven” may not necessarily exempt it from Title VII, but it is unquestionably relevant to whether it is prohibited. While it is perhaps true that a “‘business necessity’ defense is not the same as a guarantee of a free market,” it is certainly true that every business necessity is, ultimately, market-driven. Even the majority cannot avoid market-driven concepts when discussing the University’s business necessity defense (“the need for retention raises” and “job-related” have no meaning apart from a job market).

If Freyd is correct that—even in this elite context, where the defining characteristic of professors at this level is their uniqueness—pay disparities based on retention raises can permit a jury to award damages for sex discrimination, then employers will predictably be incentivized to abandon a tool for retaining top talent and revert to lock-step pay. Worse, unless all of the federal circuits agree with ours (always an unlikely proposition), another predictable result of today’s decision is that universities in the Ninth Circuit will be unable to compete economically to retain their best professors, and we could see a corresponding brain drain in universities in the western states.

Of course, if this were required by our laws prohibiting sex discrimination, then so be it. But it isn’t. The district court was correct that, for professors at this level, “a university is more akin to the National Baseball League than it is to a traditional employer.” Freyd v. Univ. of Or., 384 F. Supp. 3d 1284, 1288 (D. Or. 2019). Only by emphasizing a superficial “common core of tasks” shared by full professors and downplaying all of the obvious differences that have made them stand-outs in their profession can the majority conclude that “a reasonable jury could find that Freyd and her comparators … do substantially equal work” for purposes of the Equal Pay Act. The majority also errs in its consideration of Freyd’s Title VII disparate impact claim, relying on irrelevant statistical data to find a genuine issue of material fact and then indulging the academic fiction that the University’s retention raise practice may not serve a business necessity. I disagree with these conclusions, and therefore respectfully dissent.

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From Judge Lee H. Rosenthal’s opinion in Cooke v. Kengatharan:

This case involves an investment deal between friends that went wrong….

The plaintiffs alleged that Kengatharan invited them to invest in a newly formed company, Espero BioPharma, Inc., which Kengatharan told them would be taken public in 2019. The plaintiffs alleged that Kengatharan told them that there was a stock purchase agreement between his private equity firm and Espero BioPharma, entitling him to at least 85,000 shares of stock of Espero BioPharma when it went public. In September 2018, based on these assurances, the Ariels purchased the rights to 60,000 shares in Espero BioPharma from Kengatharan for a total of $180,000, and Cooke purchased the rights to 25,000 shares in Espero for a total of $75,000. The plaintiffs asserted that they made these purchases with the understanding that there was a stock purchase agreement. No IPO occurred, and, in November and December of 2019, the Ariels and Cooke each wrote to Kengatharan asking for the money to be returned. Kengatharan failed to pay, and the plaintiffs sued in April 2020. After several months of mediation and settlement discussions, the parties settled in February 2021 and filed a stipulation of dismissal.

Kengatharan now asks the court to seal the file in this case. The plaintiffs do not oppose. Kengatharan argues that this case is a private matter among friends that has been resolved, and that all parties desire privacy. The court considers the requests to seal, in whole or in part, under the applicable legal standards.

Courts presume that the public should have access to judicial records. “Public access [to judicial records] serves to promote trustworthiness of the judicial process, to curb judicial abuses, and to provide the public with a more complete understanding of the judicial system, including a better perception of its fairness.” The presumption in favor of access applies even when information is uninteresting to the public.

The court acknowledged that sealing is sometimes allowed:

The court has “supervisory power over its own records and files” and may also seal documents “where court files might [] become a vehicle for improper purposes” or information that could be used for “scandalous or libelous purposes.” “[I]n extreme cases the entirety of a trial record can be sealed.”

Yet the court refused to seal the record here:

The court must use care in “weighing the interests advanced by the parties in light of the public interest.”

The parties believe the case is of no public importance, but that is not the test. The public is entitled to access to judicial records. The parties have not demonstrated that keeping the case unsealed would cause the type of harm that warrants sealing in whole or in part. A personal privacy interest does not outweigh the public interest in transparency.

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The COVID-19 vaccine rollout in the United States is picking up speed. So far, nearly 74 million Americans have received one dose and around 40 million have completed a full vaccination regimen. Herd immunity will be attained through a combination of vaccinations and infections. Herd immunity is achieved when there are so many vaccinated and formerly infected people that the virus has a hard time finding immunologically unprotected people to infect.

Some researchers had earlier suggested that the herd immunity threshold for the COVID-19 coronavirus would be relatively low, but more recent research finds that around 60 to 80 percent of the population will have to be immune to end the pandemic. For argument’s sake, let’s set the U.S. herd immunity threshold at 70 percent. How close are we to achieving herd immunity and post-pandemic normality?

Nearly 30 million Americans have so far been diagnosed with COVID-19. However, it is well-known that a huge number of infections go undiagnosed or are asymptomatic. Unfortunately, U.S. public health authorities have failed to establish a COVID-19 antibody blood test population surveillance system that could have provided this information. However, a couple recent reports of antibody blood test surveys offer hints as to just how extensive COVID-19 infections have been so far.

A new study in the Journal of the American Medical Association used the nationwide blood testing results of about 62,000 people who were applying for life insurance. On the basis of those data, the researchers estimated “that 15.9 million asymptomatic or undiagnosed SARS-CoV-2 infections had occurred in the United States as of September 30, 2020.” At the time, the total number of diagnosed cases stood at just over 7.5 million.

Another new study by University of Texas researchers analyzed population and patient COVID-19 antibody results and preliminarily report that about 20 percent (5.8 million) of Texans have so far been infected with the coronavirus. Interestingly, in the population sample, 29 percent of Texans younger than 19 years of age have COVID-19 antibodies. Total diagnosed cases in the Lone Star State, meanwhile, are about 2.7 million.

The results of these recent serological surveys suggest that undetected infections are twice as high as diagnosed cases. Since some 30 million cases have been diagnosed, the serological surveys suggest that 90 million Americans have actually been infected with the virus so far. This infection rate is close to the 98 million estimate made by data scientist Youyang Gu in his path to normality projections.

So assuming herd immunity kicks in when 230 million Americans (70 percent) are either vaccinated or have been infected and recovered, how far are we from that goal? Let’s just do a very rough and optimistic calculation by assuming significant immunity among the 74 million Americans who have already gotten at least one dose of vaccine, plus the infection number of 90 million. That adds up to 164 million people who currently have antibodies against the virus, which is about 70 percent of the way toward the goal of 230 million people.

At the current rate of 2.5 million vaccinations per day, another 75 million Americans will be partially or fully vaccinated in the next month, bringing the total number of people with antibodies to 240 million by the middle of April. It is worth noting that in Israel, where about half of the population has so far been inoculated, COVID-19 cases are plummeting.

Of course, these rough calculations are complicated by the fact that there is some overlap between vaccinated and previously infected people; one-dose versus two-dose vaccines; and the spread of more transmissible and deadly virus variants, which implies a higher overall herd immunity threshold.

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Has anyone lived a more interesting, influential, and inspiring life than Stewart Brand?

Born in 1938 and educated at Stanford and by the United States army, Brand was a Merry Prankster who helped conduct Ken Kesey’s legendary acid tests in the 1960s. His guerilla campaign of selling buttons that asked “Why haven’t we seen a photograph of the whole earth yet?” pushed NASA to release the first image of the planet from space and helped inspire the first Earth Day celebrations. From 1968 to 1971, he published The Whole Earth Catalog, which quickly became a bible to hippies on communes and techno-geeks such as Steve Jobs, who famously quoted its parting message: “Stay hungry, stay foolish.” 

Brand has rightly been called “the intellectual Johnny Appleseed of the counterculture.” He helped shape early techno-culture and cyberspace by reporting on the personal computer revolution and interacting with many of its key figures early on. His ideas were instrumental in the creation of the Well, one of the earliest online communities and he helped found The Long Now Foundation, which seeks to lengthen and deepen the way we all think about the past and the future. 

In a series of books on everything from the MIT Media Lab to how buildings learn to “eco-modernism,” he has delineated a unique strain of ecological thought that embraces technology as a means of salvation and liberation rather than a destructive force that must be stopped. His current passion is Revive & Restore, an organization that is leading the “de-extinction movement” by using biotechnology to bring back plants and animals including the American Chestnut tree, the passenger pigeon, and the woolly mammoth.

Brand is the subject of the new documentary, We Are As Gods—a line from the first issue of The Whole Earth Catalog—which takes a long, critical look at his life and work. For today’s podcast, Nick Gillespie talks with with Brand and the directors of the film, David Alvarado and Jason Sussberg, about his long, strange trip over the past 60 years that has taken place exclusively at the frontier of social and cultural change.

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The culture clash over the national anthem and kneeling has largely stayed away from actual lawmaking, until now.

Ten Texas state senators introduced a bill this month, Senate Bill (S.B.) 4, that would require pro sports teams to play the national anthem at the beginning of each preseason, regular season, and postseason game hosted in Texas. It bars governmental entities at the state and local levels from entering agreements with sports teams that require a financial commitment unless the agreement includes written verification the team will play the anthem before all games. If a team fails to comply, it would be in default of the agreement.

The bill didn’t come out of the blue. Lt. Gov. Dan Patrick (R) vowed to introduce a bill back in February when it was reported that the Dallas Mavericks hadn’t been playing the anthem before their games. For 13 preseason and regular-season home games, team owner Mark Cuban decided to skip the national anthem, and it took a while for anybody to notice (perhaps because fans were only present for the last of those games). Following reports about Cuban’s decision, the NBA announced that with fans coming back into arenas, it would once again enforce its longstanding rule requiring the anthem before games.

“We respect and always have respected the passion people have for the anthem and our country,” Cuban said. “But we also loudly hear the voices of those who feel that the anthem does not represent them.”

Presumably, if this bill became law and a major sports league actually allowed a team to stop playing the national anthem (which seems a bit unlikely if even the NBA is still requiring it), it would affect stadium subsidies, any kind of government-funded tourism sponsorship, and possibly even arrangements where local law enforcement provides security. However, the bill would likely not stand up to judicial scrutiny.

“As a private organization, the NBA may legally require its teams to play the national anthem before games. Those teams cannot claim such an action violates their free expression rights,” Amy Kristin Sanders, an attorney and a professor at the University of Texas Austin School of Journalism, told Law&Crime. “But Patrick’s proposal that the Texas Legislature pass a state law requiring the national anthem be played represents state action. As a part of its speech protections, the First Amendment also bars state actors from compelling others to speak—and requiring someone to play the national anthem is just that.”

In late February, several Tennessee legislators attempted to infringe on the speech rights of athletes via a different route. Those legislators wrote a letter to the state’s public university presidents and chancellors asking them to prohibit student-athletes from kneeling during the national anthem. But, as Reason’s Robby Soave wrote, “if the university could force student-athletes to stand for the national anthem, then it could force any student to do so—and this would obviously be unconstitutional.”

The 10 Texas senators who authored S.B. 4 (nine Republicans and one Democrat) make up nearly one-third of the chamber. Hopefully, their colleagues recognize the First Amendment supersedes scoring political points.

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More than two months after rioters stormed the Capitol, Washington, D.C. is still occupied by National Guard troops, and the police say they want to make the fencing that surrounds the Capitol building permanent.

Political scientist Max Abrahms studies global terrorism. He says that the U.S. government’s response to January 6 is disproportionate to the actual threat and has turned the Capitol into something resembling a green zone in a war-torn country.

“I think that this was one of those situations where the government swung like a pendulum from doing too little to doing too much,” Abrahms tells Reason.  

“They were clearly overwhelmed and unprepared for this onslaught,” says Abrahms. “So the government responded by putting in place something like 25,000 national guards in caging up the Capitol. That would be appropriate not to deter the next Timothy McVeigh but to deter something like ISIS storming Baghdad.”

Abrahms says that “luckily that’s not the kind of threat environment we’re dealing with in the United States.”

Abrahms worries that the war on terror, started by the George W. Bush administration after 9/11 and which included detaining suspects without due process, torture, mass surveillance, and counterproductive military action, is coming to the homefront. The target: white supremacists and anti-government militia groups.

“Our response to 9/11, and this isn’t stressed enough, was actually deeply counterproductive against the kinds of terrorists that we were combating,” says Abrahms. “Americans can do much better. We don’t need to use a faulty model and apply it to the very real terrorism problem that we have at home.”

Instead of toppling dictators, the tactics of this new domestic war on extremism have so far been limited to bullying social media companies into evicting so-called extremists from their platforms, as happened with Donald Trump. 

FBI Director Christopher Wray wants the government to consider repealing Section 230 of the Communications Decency Act to make it even easier to hold tech platforms liable for content that the government says incites violence. 

“While the immunity under Section 230 has obviously helped the evolution of the social media industry, it’s also allowed it to avoid a lot of the burdens and risks that other brick-and-mortar companies have had to face,” Wray said on March 2 to the Senate Judiciary Committee. 

Since the mid-1990s, FBI directors have been citing international terrorism as a reason to consider preventing the use of end-to-end encryption. Wray is now making the same arguments, citing domestic extremists.

“We are concerned about end-to-end encryption, especially default end-to-end encryption in connection with a lot of these platforms,” Wray testified.

In his book Rules for Rebels: The Science of Victory in Militant History, Abrahms argues that the foreign war on terror created power vacuums that made the world increasingly dangerous, such as when Saddam Hussein was replaced by Al-Qaeda in Iraq, or when U.S. intervention in Syria helped the jihadist group Al-Nusra foment power. Abrahms says we’re in danger of repeating the same dynamic in this new war on terror.

“Removing somebody like Donald Trump from Twitter…might seem like a great idea to some people until they realize that Trump isn’t the absolute worst leader that could possibly bubble up,” says Abrahms. “In all likelihood, the replacements are going to be even more extreme.”

“We see a similar phenomenon with people moving from more mainstream social media platforms like Twitter, to ones that have a higher concentration of right-wing extremists like Parler, or even apps with…end-to-end encryption where nobody could surveil them,” Abrahms says.

John Brennan, former CIA director under the Obama administration, told MSNBC in January that the Biden team is working “in laser-like fashion” to investigate what he says resembles an overseas insurgency.

“It brings together an unholy alliance frequently of religious extremists, authoritarians, fascists, bigots, racists, nativists…even libertarians,” Brennan said.

Abrahms argues that the perverse effect of lumping such disparate groups together is to push otherwise reasonable actors towards the extremes.

“I think that these different issues need to be unpacked and mainstream media can’t simply say that everyone on the right—including those who are more in favor of limited government and sympathetic to some libertarian views—is crazy and believe in pedophile rings at pizza parlors,” says Abrahms

Abrahms believes that the mainstream media and the government are attempting to weaponize some of the legitimate fear that has resulted from the events of January 6 in order to marginalize those on the political right, “including those with quite reasonable views.”

“There’s this perverse phenomenon where terrorism commentators and pundits, broadcast ubiquitously by the media, make it seem as if terrorists are just so brilliant, strategic, and effective,” Abrahms says. “In fact, we often see the exact opposite.”

Abrahms says that terrorism frequently results in a backlash against those who perpetrate it. And he argues that the January 6 riots have made far-right groups look much less attractive to members.

“It’s become a national embarrassment to be part of these groups,” says Abrahms.

The Domestic Terrorism Prevention Act, which passed in the House back in September, would create new federal law enforcement units focused solely on domestic terrorism. Some politicians and law enforcement officials have said Congress should go further 

“In U.S. law there is no list of domestic terrorism organizations the same way there is for foreign terrorist organizations,” Wray said before the Senate. 

“I don’t know if we should have one or not,” responded Senator Lindsey Grahm (R–S.C.). “But it’s time to think about it.”

Abrahms argues that such illiberal actions could actually serve to incite terrorism. 

“One of the telltale signs of an illiberal government is when it makes no distinction between what it sees as political extremists and tactical extremists,” Abrahms says.

Abrahms is concerned that a heavy-handed crackdown lumping the extreme beliefs of some on the right together with the extreme tactics of would-be terrorists will ultimately backfire, just as the war on terror swept up many innocent Muslims and spurred even greater radicalization. 

“I’m really worried, frankly, about Timothy McVeigh 2.0. I think that the government needs to do everything possible not to create one,” says Abrahms. “But I’m not confident that the government actually is doing that.”

Abrahms believes that the government should prosecute those who commit terrorist acts of violence to the fullest extent of the law. However, he worries that there will be some crossover between who the government regards as a political extremist and an actual terrorist. 

“We cannot crack down on people just because we don’t like their ideology,” Abrahms says. “Otherwise the government is going to turn into the thought police and that is going to spawn the next generation of terrorists.”

Produced by Zach Weissmueller. Capitol riot footage by Ford Fischer. 

Photo credits: FBI/Zuma Press/Newscom; Bill Clark/CQ Roll Call/Newscom; Dabiq/ZUMA Press/Newscom; Pete Souza/ZUMA Press/Newscom; Moore Mike / Mirrorpix/Newscom; CNP / Polaris/Newscom; FBI/ZUMA Press/Newscom; Dabiq/ZUMA Press/Newscom; Moore Mike / Mirrorpix/Newscom; Pool/Sipa USA/Newscom; Stanislav Kogiku / SOPA Images/S/Newscom; Thiago Prudencio/ZUMAPRESS/Newscom; Jaap Arriens/Sipa USA/Newscom; Christy Bowe/Polaris/Newscom; Graeme Sloan/Sipa USA/Newscom; KEVIN DIETSCH/UPI/Newscom; Dennis Brack / DanitaDelimont.com/ Danita Delimont Photography/Newscom; Ho/ZUMA Press/Newscom

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