Category: reason

From Judge Joshua Wolson (E.D. Pa.) in Neebe v. Ravin Crossbows, LLC:

Plaintiff’s counsel wants the Court to place under seal a full-page newspaper advertisement paying tribute to a recently-deceased partner, which Plaintiff’s counsel purchased.

To say that the Court finds the Motion puzzling is to do a disservice to puzzles everywhere. The Third Circuit has held that Courts should only place public records under seal if an interest in secrecy outweighs the presumption of public access to those records. That requires a movant to show that the material is the kind of information that courts will protect and that disclosure will work a clearly defined and serious injury to the party seeking closure. Plaintiff’s Motion fails on both counts.

First, there is nothing private about the advertisement. The advertisement is a touching tribute to a deceased partner and friend, designed for public consumption. Plaintiff’s use of the word “privacy” to justify placing it under seal brings to mind The Princess Bride: “You keep using that word. I do not think it means what you think it means.”

Second, the Court cannot fathom what injury could arise from the public disclosure of something that Plaintiff’s counsel paid a newspaper to make public. Indeed, other than to allow some sort of Weekend At Bernie’s style caper, the Court cannot envision a reason to keep the tribute private.

Because there is nothing private or confidential about a paid advertisement in a newspaper—especially one as well-intentioned as the tribute here[—]the Court will deny Plaintiff’s motion to file Exhibit B to her Response to the Court’s Order to Show Cause under seal….

The ad was apparently introduced in support of the firm’s request that the court consider an untimely response; the untimeliness, the firm argued, should be excused because it stemmed from the partner’s unexpected death.

Thanks to Benjamin R. Picker for the pointer.

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The police union in Rochester, New York, is defending a group of cops who pepper-sprayed and handcuffed a nine-year-old girl on Friday.

“They were trying to get her into the car,” said Mike Mazzeo, president of the Locust Club police union, at a press conference. The officer who pepper-sprayed the girl “made a decision there that he thought was the best action to take,” Mazzeo declared. “It resulted in no injury to her. Had they had to go and push further and use more force, there’s a good chance she could have been hurt worse. It’s very difficult to get someone into the back of a police car like that.”

In this case, that someone was a child—what’s more, a child who wasn’t suspected of committing any crime. Footage shows her screaming for her father as officers force her to the ground to cuff her. Officers were reportedly responding to a family disturbance call, with Deputy Police Chief Andre Anderson claiming that the child “indicated that she wanted to kill herself, and she wanted to kill her mom,” according to The New York Times.

Prior to that, she can be seen running down the street away from an officer on the scene.

He eventually caught up. “You’re not gonna run away from me, OK?” an officer says. “Because I’m gonna have to chase you, OK? And I got, like, six other cars coming to chase you.” He delivered, with the video footage showing at least six squad cars and seven officers, all to detain a nine-year-old.

The union’s reaction shouldn’t be particularly surprising. Public-sector unions exist to protect their members at all costs. That is, after all, the purpose of a union. Those of the public-sector variety have the advantage of monopoly control.

“[P]ublic-sector unions exert a disproportionate amount of effort defending their worst members—not just the ones whose performance is subpar but the ones who are actively malign,” notes Peter Suderman in the March Reason. “Unions show their unwavering dedication to protecting their members’ jobs by making sure it’s very difficult—sometimes nearly impossible—to fire a union member, no matter what that person has done. It’s not the easy cases where the unions demonstrate the strength of their commitment; it’s the hard ones.”

In other words, behavior that shocks the conscience can embolden such groups to carry on the fight. A similar dynamic is underway with teachers unions, many of which have doubled down inflexibly on refusing to return to schools during the COVID-19 pandemic. Opposition to public-sector unions has swelled over the last year, with the left denouncing police unions and the right denouncing teachers unions. If only both sides realized how close they were to figuring out the bigger picture.

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Here’s “love is more thicker than forget” (1939) by e.e. cummings (1894-1962):

love is more thicker than forget
more thinner than recall
more seldom than a wave is wet
more frequent than to fail…

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

1. “Ulysses” by Alfred, Lord Tennyson
2. “The Pulley” by George Herbert
3. “Harmonie du soir” by Charles Baudelaire
4. “Dirge Without Music” by Edna St. Vincent Millay
5. “Clancy of the Overflow” by A.B. “Banjo” Paterson
6. “Лотова жена” (“Lotova zhena”, “Lot’s wife”) by Anna Akhmatova
7. “The Jumblies” by Edward Lear
8. “The Conqueror Worm” by Edgar Allan Poe
9. “Les Djinns” by Victor Hugo
10. “I Have a Rendezvous with Death” by Alan Seeger
11. “When I Was One-and-Twenty” by A.E. Housman
12. “Узник” (“Uznik”, “The Prisoner” or “The Captive”) by Aleksandr Pushkin
13. “God’s Grandeur” by Gerard Manley Hopkins
14. “The Song of Wandering Aengus” by William Butler Yeats
15. “Je crains pas ça tellment” by Raymond Queneau
16. “The Naming of Cats” by T.S. Eliot
17. “The reticent volcano keeps…” by Emily Dickinson
18. “Она” (“Ona”, “She”) by Zinaida Gippius
19. “Would I Be Shrived?” by John D. Swain
20. “Evolution” by Langdon Smith
21. “Chanson d’automne” by Oscar Milosz

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Bruce Norris, who was serving life in a Pennsylvania state prison for his role in a 1975 robbery and murder, died of COVID-19 on Saturday at age 69.

Norris is one of more than 2,300 prisoners across the United States who have died of coronavirus-related illnesses behind bars. What makes Norris’ case stand out was that Pennsylvania’s Board of Pardons had recommended his sentence be commuted by the governor back in early December. But Democratic Gov. Tom Wolf had not acted on the recommendation. While Norris was awaiting Wolf’s mercy, he was infected by his cellmate and died.

Norris, who had expressed regret for his crime, earned a bachelor’s degree behind bars. He had been in jail for 45 years.

Wolf’s office blamed the process for the governor’s failure to act. A spokesperson sent a statement to the Philadelphia Inquirer: “The recommendations are processed by Board staff and then through a thorough legal review before heading to the governor’s desk for consideration. Upon receipt of the written recommendations the governor will review each case individually and weigh his decision after factoring in the effect a pardon will have on any victims and the likelihood of the person to re-offend.” The spokesperson also complained that while the board had increased the number of applications it was sending through, the governor’s office didn’t have enough staff to process the applications faster.

That’s not the only barrier that keeps inmates in Pennsylvania stuck in jail during a pandemic. The state does not have a law that allows for parole for medical reasons unless a prisoner is dying. A year ago, before COVID-19 actually began its spread, State Corrections Secretary John Wetzel called on lawmakers to consider changes to allow for easier release of elderly and chronically sick inmates if they don’t have histories of violence. Wetzel pointed out that the state could save $22 million a year on medical costs if it had a parole system for older or sick inmates.

For Norris, Wolf’s signature was the only way out, and he didn’t get it in time.

Celeste Trusty, the Pennsylvania State Policy Director for the sentencing reform organization FAMM, sent a letter to Wolf’s office urging him to quickly sign the remaining commutation requests the Board of Pardons has sent to him:

As governor, you have the critical tools of reprieve and clemency at your disposal. Utilizing these tools in targeted and innovative ways has the potential to immediately save countless lives and diminish unimaginable suffering for Pennsylvania families.

Wolf announced his 2021 agenda on Friday. His criminal justice proposals include bail and probation reforms that could reduce jail populations. If he’s serious, he needs to set aside some time to deal with those commutations too.

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President Joe Biden has moved swiftly to rev up the regulatory state by weakening oversight and effectively ending a reality-based assessment of the costs and benefits of federal regulation.

It may have gone largely unnoticed amid a flurry of executive orders Biden has signed since taking office less than two weeks ago, but a January 20 memo from the White House to the “heads of executive departments and agencies” outlines a regulatory framework that will empower federal bureaucrats to count unquantifiable “benefits” when weighing the potential impact of new regulations.

Specifically, Biden instructed those officials to revamp their regulatory review processes to “promote public health and safety, economic growth, social welfare, racial justice, environmental stewardship, human dignity, equity, and the interests of future generations.” The memo also states that the new regime “serves as a tool to affirmatively promote regulations.”

Towards that end, Biden’s memo says that his administration will alter the Office of Management and Budget’s rules regarding regulations “to ensure that the review process…fully accounts for regulatory benefits that are difficult or impossible to quantify.”

In other words, if a bureaucrat can conceive of a way that new regulations could advance the goals of racial justice or environmental health, those political aims should be counted as benefits—even if they can’t, well, actually be counted.

That’s a recipe for more regulation, and for a less honest assessment of which rules might be worthwhile and which merely make the appropriate gestures to a political agenda.

“The aim is to put weight on the scales of whether or not to regulate such that the answer will always be in the affirmative, replacing market operation and civil society with government in the pursuit of a range of non-quantifiable goals, even without legislation from Congress,” says Clyde Wayne Crews, a vice president at the Competitive Enterprise Institute.

Biden’s directive builds on a 1993 executive order issued by then-President Bill Clinton, which altered a Reagan-era directive ordering federal agencies to issue regulations only when the benefits exceed costs. Clinton shifted the standard to say that the benefits of proposed regulations must only “justify” the costs. Biden’s memo suggests that his administration is prepared to inflate the definition of “benefits” to the point of making any cost/benefit analysis effectively worthless.

During his first week in office, Biden also abolished a Trump-era rule that imposed some measure of accountability on the federal bureaucracy. In 2017, President Donald Trump’s Executive Order 13777 established regulatory reform officers and task forces at federal agencies. Their job was to ensure compliance with Trump’s other regulatory reforms—including the famous “one-in, two-out” order, which mandates that two regulations be removed for each new rule that was imposed.

While the Trump administration did plenty to grow the size of government during its four years in power—including a gigantic hike in federal spending and expensive new tariffs on many imported goods—the one-in, two-out regulatory policy was a success from a small-government perspective. According to Crews, who has been tracking the size and power of the federal regulatory state for decades, the Trump administration actually revoked about 3.2 regulations for every new one approved.

Biden wasted no time in scrapping those Trump-era changes, not just removing the “one-in, two-out” policy but also gutting the extra layers of accountability that the administration imposed on the regulatory approval process.

If Biden was serious about modernizing regulatory review in a fair way, that oversight could provide important insight. Removing it suggests that to Crews that Biden is preparing “a new architecture for never-ending, endless regulations.”

It hasn’t taken very long for the Biden administration to demonstrate why it’s not enough for Republicans and conservatives to merely roll back the administrative state when they take control of the White House. As soon as a Democrat takes over, those changes can be quickly wiped away. Serious, lasting reform will require congressional action.

Meanwhile, get ready for the regulations to start spewing forth from Washington once again.

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