Category: reason

Students at the University of California, Berkeley are paying for the privilege of living in police-enforced lockdown. The university, which is dealing with a surge of COVID-19 cases, has decided to use draconian means to make sure virus spread stays limited. “The self-sequester mandate for UC Berkeley students living in the dormitories, originally intended to end Monday, has been extended for another week, with stricter security measures in place to enforce quarantining,” noted SFGate yesterday.

The new security measures include campus cops roaming dormitory halls looking for students leaving their rooms for unapproved reasons. The only permissible reasons to leave your dorm room at UC Berkeley are for meals, bathroom breaks, or getting a COVID-19 test.

Those reasons no longer include individual outdoor exercise as of this week. “We are working with the city of Berkeley to determine whether outdoor exercise may be permitted, and we will provide more information on this in the near future,” the university told students.

Students found in violation of these rules face the threat of suspension and being thrown out of student housing. The mandate extends until February 15.

Aside from being bad for student morale and mental health, the scheme seems much more likely to lead to dicey encounters between campus security and students than to have any effect on public health.

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FREE MINDS 

Jacob Sullum on the illogic of civil commitments for sex offenders who have served their sentences:

The state punishes people who commit sex crimes based on the assumption that they could and should have controlled themselves. But when it is time for them to be released after completing the punishment prescribed by law, the state says that was not actually true; now they must be locked up precisely because they can’t control themselves.

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FREE MARKETS 

Albuquerque is one of the only cities in the country that bans the sale of homemade food. But a new bill in New Mexico Legislature could finally make it possible for bakers like mother Katie Sacoman to earn a living from home: https://t.co/aNUQFErfol

— Institute for Justice (@IJ) February 8, 2021

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QUICK HITS

• Notes on the first day of former President Donald Trump’s second impeachment trial.

• American women’s labor force participation is at a 33-year low, according to new unemployment data analyzed by the National Women’s Law Center. “This brings the total number of women who have left the labor force since February 2020 to more than 2.3 million,” and puts women’s labor force participation rate “at 57%, the lowest it’s been since 1988,” reports CNBC.

• Regulating tech companies like common carriers is a terrible idea:

.@ProfWrightGMU & @RichardAEpstein debate on common carrier regulation for social media platforms.

All you need to know about who won the debate is that Epstein mentioned “hydroxychloroquine” multiple times.https://t.co/nZAvghkVrs

— Alec Stapp (@AlecStapp) February 10, 2021

• A projection from the nonpartisan Congressional Budget Office says raising the federal minimum wage to $15 per hour would result in 1.4 million lost jobs.

• A new research paper from researchers at New York University and Columbia Business School finds “the COVID-19 pandemic brought house price and rent declines in city centers, and price and rent increases away from the center, thereby flattening the bid-rent curve in most U.S. metropolitan areas.”

• A Beverly Hills police officer turned on some Sublime music along with his body camera in what’s being described as an attempt to prevent the footage from being shared on social media by triggering copyrighted music filters and instant takedown.

• Elle magazine excerpts a new collection of essays from sex workers titled We Too.

• Is America too bound by red tape to support successful space innovation anymore?

• Chicago schools will reopen.

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On Friday, the University of Virginia Federalist Society Chapter will hold its 2021 Originalist Symposium. I spoke at this conference last year–it was one of my final trips out of town before the lockdown. This year, the students have upped the ante, and put together a stellar lineup. You can register today to attend virtually.

I will be speaking on the first panel about Bostock.

Textualism After Bostock

Bostock v. Clayton County was a landmark decision in more ways than one. Of course, the holding was groundbreaking. But so too was the fact that all three Bostock opinions rooted themselves in textualist principles. How much does the Bostock split matter? Should we expect more or fewer divisions like those in Bostock? And how will the Court’s changes in personnel affect this divide?

Prof. Josh Blackman
South Texas College of Law
Prof. Tara Leigh Grove
University of Alabama School of Law
Prof. Michael Rappaport
University of San Diego School of Law

The second panel will track the growing discontent for originalism within the conservative legal movement.

Originalism’s Conservative Foes

The conservative legal movement has championed originalism for decades. But there are growing signs of dissension — some argue that originalism has outlived its utility and should be abandoned. How should originalists respond to these challenges from the right?

Josh Hammer
Opinion Editor, Newsweek
Prof. Stephen Sachs
Duke University School of Law
Prof. John Yoo
UC Berkeley School of Law
The Honorable Gregory Maggs
Judge, United States Court of Appeals for the Armed Forces (moderator)

The third panel looks at the (gasp) Thomas Court:

Originalism, Institutionalism, and the Thomas Court

With the Court’s conservative wing ascendent, what should originalists expect in the coming years? Will one or more justices try to position themselves as the intellectual heir to Justice Scalia, or will different justices establish their own brands of originalism? What comes next in the judicial wars, and how will President Biden shape the judiciary?

John Malcolm
Director, Meese Center for Legal and Judicial Studies, The Heritage Foundation
Prof. Jennifer Mascott
Antonin Scalia Law School
The Honorable Beth A. Williams
Former Assistant Attorney General, US Department of Justice
The Honorable Neomi Rao
Circuit Judge, United States Court of Appeals for the District of Columbia Circuit (moderator)

The closing panel looks at public perceptions of originalism:

Originalism’s Public Meaning

Supreme Court confirmation hearings tend to shine a bright spotlight on originalism. During Justice Barrett’s hearings, many prominent figures — from politicians to Hollywood celebrities — opined on the nature and merits of originalism. But how does the general public view originalism? And how much should originalists be concerned with the public’s conception of what originalism is?

Elizabeth Slattery
Senior Legal Fellow, Pacific Legal Foundation
Prof. Kurt Lash
University of Richmond School of Law
David Lat
Founding Editor, Above the Law
Evan Bernick
Visiting Professor of Law, Georgetown University Law Center (moderator)

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I have an article about it at Tablet Magazine; here’s the opening:

In 2016, a Florida man named Douglass Mackey (using the online alias “Ricky Vaughn”) allegedly conspired to distribute a meme aimed at deceiving pro-Hillary voters.

Four years later, Mackey is now being prosecuted (as to this and as to other memes) for violating 18 U.S.C. § 241, a federal law that punishes conspiracies “to injure, oppress, threaten, or intimidate any person … in the free exercise or enjoyment of any right or privilege secured to him by the Constitution”—namely, the right to vote. Lying to voters in a way that keeps them from voting, the theory goes, is a crime.

Is this sort of prosecution constitutional? After all, people often lie in political campaigns. Candidates do it, activists do it, political operatives do it. Can election lies simply be outlawed?

Surprisingly, the Supreme Court has never resolved the question. It hasn’t resolved the big-picture question: When can the government punish lies? It hasn’t resolved the medium-size question: Can the government punish lies in election campaigns? And it hasn’t resolved the particular question: Can the government punish lies about the mechanisms of voting, and in particular about how to vote?

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From Croce v. Sanders, decided last Wednesday by the Sixth Circuit (Judges Raymond Kethledge, Amul Thapar & Chad Readler):

Carlo Croce’s name appears on over 1,000 scientific research articles. Sometimes all he contributed to the article was an idea, while another scientist conducted the research and wrote up the results. A different scientist, David Sanders, discovered that some of these papers contained manipulated data and plagiarized text. When Sanders went to the press with his discovery, Croce sued him for defamation….

Dr. David Sanders is a biological-sciences professor at Purdue University. He makes a practice of discovering and reporting instances of data falsification and fabrication in scientific papers. So when he received a tip about manipulated images in a scientific article about lung cancer, he took a look. One of the images depicting a protein analysis appeared to have been manipulated.

Among the paper’s authors was Dr. Carlo Croce, a celebrated cancer researcher and professor at the Ohio State University. Croce’s name appeared last—suggesting that the paper came from researchers at Croce’s lab but that Croce did not himself conduct the experiment. Sanders, concerned about what appeared to be intentional manipulation of data, kept digging. He ultimately discovered problems in about thirty articles that listed Croce as a co-author.

Sanders reported his concerns to the respective journals. But he found their responses unsatisfactory, so he contacted a reporter from the New York Times, James Glanz. He told Glanz about the problems he’d discovered in the articles, and Glanz investigated. As part of his investigation, Glanz sent a letter to Ohio State and Croce, asking for comments. The letter described the alleged problems in “Croce’s papers”—papers that Croce had co-authored. In the letter, Glanz named Sanders as the source of the allegations. Glanz’s investigation led to a New York Times article about Croce: Years of Ethics Charges, but Star Cancer Researcher Gets a Pass.

The New York Times article prompted a follow-up report by Meghan Holden of the Lafayette Journal & Courier, a paper local to Sanders’s university. The article, Purdue Biologist Calls Out Cases of Scientific Misconduct, described the thankless and risky work of identifying research misconduct in the scientific field. The piece referenced the New York Times article and said that the costs of whistleblowing “didn’t stop Sanders from alleging that [Croce] falsified data or plagiarized text in more than two dozen articles Croce has authored.” …

Croce identifies six allegedly defamatory statements—two from each document. Of the six, five are either statements of opinion or substantially true. And Croce has offered no admissible evidence in support of the sixth statement, only hearsay. Thus, the district court correctly granted summary judgment to Sanders on each of his claims.

For details, see the opinion, which strikes me as correct.

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Does the United States still have what it takes to venture into a new frontier? It’s a question we need to ask as SpaceX and its founder, Elon Musk, face off with regulators over when and how the government will permit the pioneering commercial space company to test its rockets. While there’s little question that humans will continue exploring beyond the Earth, Americans may be too bound by red tape to lead such efforts.

In December, SpaceX conducted a test of its Starship SN8 prototype that saw the Buck Rogers-looking craft rise and descend as hoped, with the small problem of an explosion on landing. The “rapid unscheduled disassembly” (RUD) wasn’t unexpected, though. Elon Musk had earlier warned that it was a very real possibility for the experimental craft.

Recently, we discovered that the test flight wasn’t supposed to happen at all in the eyes of regulators.

“Prior to the Starship SN8 test launch in December 2020, SpaceX sought a waiver to exceed the maximum public risk allowed by federal safety regulations,” a Federal Aviation Administration (FAA) spokesperson told journalists. “After the FAA denied the request, SpaceX proceeded with the flight. As a result of this non-compliance, the FAA required SpaceX to conduct an investigation of the incident. All testing that could affect public safety at the Boca Chica, Texas, launch site was suspended until the investigation was completed and the FAA approved the company’s corrective actions to protect public safety.”

After a regulator-induced delay, the next test flight—of the Starship SN9—launched on February 2, with an outcome similar to that of its predecessor.

“During the landing flip maneuver, one of the Raptor engines did not relight and caused SN9 to land at high speed and experience a RUD,” the company reports.

As the test flights continue, so do disputes between SpaceX and the FAA.

“Unlike its aircraft division, which is fine, the FAA space division has a fundamentally broken regulatory structure,” Musk protested before the SN9 launch. “Their rules are meant for a handful of expendable launches per year from a few government facilities. Under those rules, humanity will never get to Mars.”

The SpaceX founder isn’t alone in pointing out that regulators haven’t kept up with the times when it comes to the changing nature of ventures into space.

“The era of commercial space travel and the rise of abundant spacefaring nations has led to an increase in space activity, which has outpaced international space laws—laws that were originally imagined for state-sponsored space travel in an arena with only two spacefaring states,” Juan Davalos wrote in a 2015 article for Emory International Law Review.

“Existing space law has not kept up with the growth in the private sector, and the United States lacks a comprehensive regulatory regime,” Brianna Rauenzahn, Jasmine Wang, Jamison Chung, Peter Jacobs, Aaron Kaufman, and Hannah Pugh chimed in last summer in the University of Pennsylvania Law School’s The Regulatory Review.

Worse, the regulatory regime that the U.S. does have, inherited from an era of government-dominance of space, lends itself (as do all intrusive rules) to abuse. That can come from “you will respect mah authoritah” resentment of anybody who bucks bureaucracy. But it can also reflect government seat warmers’ discomfort with the unfamiliar and threatening world of private entrepreneurial activity.

“While at first glance the FAA/SpaceX dust-up over their rapid rocket development might be looked at as a rich entrepreneur breaking the rules, and a federal agency trying to keep the public safe, it is actually an example of a government organization—the FAA—unable to distinguish between innovation and execution,” cautions Silicon Valley’s Steve Blank, for whom Elon Musk once interned. “In innovation failure is part of the process. Test rockets blow up, test airplanes may crash. If you do not push the envelope and discover the limits of your design you’re not innovating fast enough or far enough.”

The aviation industry got its start in an entrepreneurial culture that balanced risk and reward to the satisfaction of innovators, not regulators. Orville Wright was badly injured, and a passenger killed in a disastrous early flight. Otto Lilienthal was one of the early pioneers who died as a result of his efforts. Their experiments might well have exceeded the “maximum public risk allowed” by government regulations had those rules existed at the time, but fortunately they did not. Instead, the innovators and their supporters did much as they pleased within their own risk tolerances, to the world’s benefit.

That’s certainly not the case today, though even the FAA’s political masters recognize that the agency needs to change. The FAA is under orders “to streamline the regulations governing commercial space launch and reentry licensing” under rulemaking that “replaces prescriptive requirements with performance-based criteria.”

But there’s no assurance that “streamline” means easing regulation rather than making it more restrictive.

Advocates of reform with regards to commercial space flight have widely varying ideas. Georgetown University Law Center’s Hope Babcock wants to prevent the extension of private property rights to space so that everything beyond the Earth’s surface is held in common. By contrast, the Mercatus Center’s Eli Dourado urged Congress “to consider blanket authorization for all nongovernmental operations in space that do not cause tangible harm to other parties.”

Space’s X’s Elon Musk is pretty clear about what he wants. When the Wall Street Journal asked him in December 2020 what government could do to foster innovation, he replied that “a lot of the time, the best thing that government can do is just get out of the way.”

If U.S. regulators won’t get out of the way of space entrepreneurs, then maybe this is no longer the right country for those entrepreneurs. Modern innovators might be best served by moving their efforts to locales that are more willing to let them decide which risks are worth taking.

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One of the primary arguments made in defense of Donald Trump in anticipation of and during the first day of the second Trump impeachment trial is that it is unconstitutional for the Senate to conduct such a trial after Trump has left office. This position has garnered the support of an overwhelming majority of Senate Republicans and has convinced some commentators as well, even if it is widely rejected by constitutional attorneys and legal scholars across the spectrum.

In making the argument against so-called late impeachments, the Trump defense brief repeatedly cites the work of Professor Brian Kalt on the impeachment of former federal officials. This makes sense because Professor Kalt is the foremost scholar in this area, having written what is widely regarded as the definitive treatment of the subject. The only problem is that the brief misrepresents Professor Kalt’s work.

Writing in Slate, Professor Kalt details how Trump’s attorneys mangle and distort his work.

Trump’s lawyers focused their attention on the parts of my article that favored their side, and not the parts—including my overall conclusions—that favored late impeachability. Fair enough—their job is to advocate for Trump, not for me. But as I looked more closely at just how they depicted my work, it was clear that there was a problem.

In several places, they cited me as though I had concluded something when in fact I had concluded the opposite. For instance, they said:

The only purpose of impeachment is to remove the President, Vice-President, and civil officers from office. When a President is no longer in office, the objective of an impeachment ceases. (Kalt at 66.)

So what did I say on Page 66? In that section, I looked at some different ways to interpret the constitutional text. One such way, which I called “Interpretation #3,” was consistent with what Trump’s lawyers were citing me for. But after summing up Interpretation #3, I denigrated it, saying that it had “deep flaws.” More to the point, one of its flaws was that removal “is not the sole end of impeachment.” In other words, I said the exact opposite of the proposition for which they cited me.

This is not an isolated example. Professor Kalt goes on to give several others, demonstrating that this is not a case of an overzealous advocate making a small error in the course of drafting a brief on a tight deadline. It rather appears as a sloppily scurrilous effort to create a false narrative about the relevant legal scholarship.

One more example from Kalt’s Slate essay helps make the point. In their brief, Trump’s defense team writes:

One legal scholar described the simplicity of Article II’s limitation, which House Managers try in vain to make seem inscrutable, in this way: “A half-grown boy reads in a newspaper that the President occupies the White House; if he would understand from that that all Ex-Presidents are in it together he would be considered a very unpromising lad.” (Brian C. Kalt, The Constitutional Case for the Impeachability of Former Federal Officials: An Analysis of the Law, History, and Practice of Late Impeachment, 6 Tex. Rev. L. & Pol. 13, 20 (2001).)

Kalt comments:

That’s a great, colorful quotation, and I get why they included it. But I never said it. My article did quote the 19^th century lawyer who actually said this line, as part of what I called the simple argument against late impeachment. But remember, my article was 124 pages long. If you want to quote me, quote anywhere from the section of the article on why that 19th century lawyer was wrong. Cite me, without a signal, for my argument about how the text is indeed inscrutable. (Several pages later, in a footnote, Trump’s lawyers used the same quote again, this time properly attributing it to Jeremiah Black. Black was a lawyer in the 1876 case of ex–Secretary of War William Belknap, in which the Senate voted 37–29 against Black’s arguments and in favor of jurisdiction).

It is understandable why Donald Trump’s defenders would rather make technical constitutional arguments about the limits of the Senate’s authority than try to defend Trump’s conduct on the merits, but there is no excuse for such sloppy and dishonest work as contained in their briefing to the Senate.

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