Category: reason

From the County’s page:

Q: Are car parades, cruises, and joyriding prohibited?

A: No, they are NOT prohibited by any stay at home order issued by the Osage County Health Department. In addition, according to guidance issued by the Adjutant            General, the Governor’s stay at home order does not prohibit “joyriding, cruising or parades” so long as the “occupants of the vehicle reside in the same residence and        vehicles do not stop and congregate.”

The Kansas Justice Institute / Kansas Policy Institute helped bring that about, and it does seem to me that a total ban on parades, including car parades, would likely be unconstitutional: It wouldn’t leave open any alternative channels for public assembly, and it wouldn’t be necessary to serve a compelling government interest (given that people driving in cars with closed windows seem quite unlikely to infect each other).

Of course, some content-neutral regulations would still be permitted, for instance to keep the slow-moving parade from tying up traffic during rush hour; but that’s generally true of any large parade that risks tying up traffic.

from Latest – Reason.com https://ift.tt/3cD2des
via IFTTT

From today’s agreed order in On Fire Christian Center, Inc. v. Fischer (W.D. Ky.):

1. Plaintiff agrees to take reasonable steps to ensure that, during drive-in church services, attendees who enter upon Plaintiff’s premises for “drive-in” church services abide by the social distancing guidelines as promulgated by the Centers for Disease Control and Prevention (“CDC”). It is understood and agreed by the parties that compliance with the CDC social distancing guidelines shall be deemed satisfied if:

a. Attendees maintain six (6) feet of physical distance between cars parked on Plaintiff’s premises during the service;

b. Attendees remain for the duration of the service in the automobile in which they traveled to the service;

c. Attendees keep the windows on their cars at least half of the way closed for the duration of the service;

d. No more than one service leader shall be present on the stage at any point during the service, except that, during the congregational singing, three additional leaders may be present in front of the stage area so long as they remain at least 6 feet apart from one another and from any other attendee at all times.

e. Plaintiff’s staff and/or volunteers may be closer than 6 feet to each other as required for the set-up and take-down process and other logistical needs for drive-in church services. Plaintiff’s security personnel may be closer than 6 feet to each other to discuss and/or address any security issues, as needed….

3. Plaintiff and its staff agree to implement reasonable processes and procedures to ensure that, during its services and its rituals, there is no direct person-to-person contact throughout the duration of all worship services.

4. Defendant Metro Government and/or the Louisville Metro Department of Public Health and Wellness (“LMDPHW”) may take such actions with regard to Plaintiff and the attendees at its drive-in services to ensure compliance with the social distancing guidelines, as defined above, as they take with regard to other individuals and establishments. Nothing in this paragraph shall be construed to permit Defendant Metro Government and/or the LMDPHW to take any action with regard to Plaintiff or the attendees at its drive-in services that is discriminatory toward Plaintiff or the attendees at its drive-in services.

5. If a complaint is received by Defendant Metro Government and/or the LMDPHW against an attendee at or participant in Plaintiff’s drive-in services alleging a violation of any of the above-described social distancing guidelines, the parties agree that such complaint will be addressed as follows:

(a) Minor Offense: If, after investigation by the LMDPHW, it is determined that an attendee at or participant in Plaintiff’s drive-in services has not abided by the terms of this Order, LMDPHW shall conduct an educational meeting with that person instructing him or her on proper methods of complying with the social distancing guidelines as set forth hereinabove;

(b) Major or Subsequent Offense: If, after investigation by LMDPHW, a determination is made that an attendee at or participant in Plaintiff’s drive-in services has committed a major offense that is a significant departure from the social distancing guidelines, then LMDPHW may issue an Order requiring immediate compliance by that person with the social distancing requirements set forth hereinabove. If an attendee at or participant in Plaintiff’s drive-in services thereafter does not abide by the above-described social distancing guidelines, LMDPHW may impose a fine upon that person in an amount and manner consistent with the laws of the State of Kentucky and/or the City of Louisville….

Last Friday, the Governor of Kentucky filed an amicus brief stating that his shutdown order “does not prohibit drive-in religious services,” though

• “Vehicles must contain only people from the same household;
• All individuals must remain in their vehicles;
• The vehicles must be at least six feet away from each other;
• Church staff must be at least six feet away from each other and at least six feet
  away from the vehicles; and
• Proper hygiene measures recommended by the Centers for Disease Control and Prevention must be implemented.”

The brief made clear that his order also didn’t block local officials from imposing tighter restrictions. But today’s agreement suggests that the Mayor concluded that it wasn’t worthwhile for him to try that.

from Latest – Reason.com https://ift.tt/3bu5DQw
via IFTTT

 

The Fordham Urban Law Journal has published a symposium on Knick v. Township of Scott, an important Supreme Court decision issued last year, which overruled a longstanding precedent that prevented nearly all takings claims against state and local governments from being brought in federal court. The symposium includes contributions by Laura Beaton and Matthew Zinn (who filed an amicus brief supporting the government on behalf of several state and local governments), David Dana (Northwestern University), Dwight Merriam (prominent attorney and commentator on takings law), and Robert Thomas (well-known takings expert and author of the Inverse Condemnation blog). Thomas has a post on the symposium at his blog.

The symposium also includes an article  that I coauthored with Prof. Shelley Ross Saxer (Pepperdine), which addresses the question of whether the Knick majority was justified in overturning the 1985 Williamson County decision from the standpoint of a variety of leading theories of stare decisis. Here is the abstract to our piece:

The Supreme Court’s decision in Knick v. Township of Scott was an important milestone in takings jurisprudence. But for many observers, it was even more significant because of its potential implications for the doctrine of stare decisis. Knick overruled a key part of a 34-year-old decision, Williamson County Regional Planning Commission v. Hamilton Bank, that had barred most takings cases from getting a hearing in federal court.

Some fear that the Knick decision signals the start of a campaign by the conservative majority on the Court that will lead to the ill-advised overruling of other precedents. In this article, we explain why such fears are misguided, because Knick’s overruling of Williamson County was amply justified under the Supreme Court’s established rules for overruling precedent, and also under leading alternative theories of stare decisis, both originalist and living constitutionalist.

Part I of this Article briefly summarizes the reasons why Williamson County was wrongly decided, and why the Knick Court was justified in overruling it on the merits — at least aside from the doctrine of stare decisis. The purpose of this Article is not to defend Knick’s rejection of Williamson County against those who believe the latter was correctly decided. For present purposes, we assume that Williamson County was indeed wrong, and consider whether the Knick Court should have nonetheless refused to overrule it because of the doctrine of stare decisis. But the reasons why Williamson County was wrong are relevant to assessing the Knick Court’s decision to reverse it rather than keeping it in place out of deference to precedent.

Part II shows that Knick’s overruling of Williamson County was amply justified based on the Supreme Court’s existing criteria for overruling constitutional decisions, which may be called its “precedent on overruling precedent.” It also addresses Justice Elena Kagan’s claim, in her Knick dissent, that the majority’s conclusion requires reversing numerous cases that long predate Knick. Part III explains why the overruling of Williamson County was justified based on leading current originalist theories of precedent advanced by prominent legal scholars, and by Supreme Court Justice Clarence Thomas in his recent concurring opinion in Gamble v. United States. In Part IV, we assess the overruling of Williamson County from the standpoint of prominent modern “living constitutionalist” theories of precedent. Here too, it turns out that overruling was well-founded.

I previously published an article defending the result in Knick more generally, which is available here. I also discussed the issues at stake in the case in a Wall Street Journal op ed, and in an amicus brief I coauthored on behalf of the Cato Institute, the National Federation of Independent Business, the Southeastern Legal Foundation, the Beacon Center of Tennessee, the Reason Foundation (which publishes Reason magazine and this website), and myself.

Knick was a closely divided 5-4 decision, which split the Court along right-left ideological lines. For that reason, it is entirely appropriate that the Fordham Urban Law Journal symposium includes a wide range of perspectives on the case. David Dana’s article and that by Beaton and Zinn are generally sympathetic to the dissenters in the case, while Thomas’ article and the one I coauthored with Shelley Saxer are on the opposite side. Merriam is, perhaps, somewhere in between, though leaning more towards the majority.

The debate over Knick is likely to continue. One issue that remains in question is whether there will in fact be a flood of new takings cases filed in federal court, as critics of Knick allege. Dwight Merriam’s contribution to the Fordham symposium is skeptical of this claim, as was I in my earlier article about the case (where I also pointed out that an increase in federal-court takings cases might well actually be a good thing, if it did happen). But it is still too early to know for sure.

However, one consequence of Knick is that takings claims by businesses and other enterprises challenging coronavirus shutdown orders can now potentially be filed in federal court. So far, however, the only significant case of this kind that I know was actually filed and decided (in favor of the government) by a Pennsylvania state court. In my view, the doctrine in this area is sufficiently clear that most plaintiffs are likely to lose regardless of the venue. But perhaps we will see some of these cases end up in federal court, nonetheless.

Finally,  I am happy to second Robert Thomas’ praise of the editors of the Fordham Urban Law Journal, who did an excellent job of putting together a balanced symposium, and seeing it through to publication, despite the onset of the coronavirus crisis.

NOTE: The views expressed in this post, my articles about Knick, and my other writings related to the case do not necessarily represent those of the organizations I represented in the amicus brief I authored.

from Latest – Reason.com https://ift.tt/351JiaO
via IFTTT

The Arkansas Department of Health, like agencies in some other states, has issued an order putting on hold all “non-medically-necessary” surgical procedures (defined as ones that are “immediately necessary to protect the life or health of the patient”) including surgical abortions; medication abortions appear to still be allowed. The justification for the postponement of the procedures is “a need to preserve existing PPE [personal protective equipment] resources and limit social contact among patients, healthcare providers, and hospital staff.”

A district judge blocked the ban as to abortions, but was reversed by today’s Eighth Circuit decision in In re Rutledge (written by Judge Bobby Shepherd and joined by Ralph Erickson, with Judge James Loken dissenting without opinion). The opinion largely follows the logic of the Fifth Circuit opinion (In re Abbott) that reached the same result, and particularly sharply condemns the trial court for ignoring Jacobson v. Massachusetts and for reversing the order categorically as to all abortions.

But the opinion leaves open the possibility that there would need to be exceptions from the Department of Health order for those abortions for which postponement wouldn’t just be a delay but a denial—those that are near viability. Indeed, in the Fifth Circuit case the trial judge reissued an order protecting those abortions, and the Fifth Circuit has kept it in place, at least at this stage of the litigation. We’ll see what happens in the Arkansas case.

from Latest – Reason.com https://ift.tt/2xRYdrF
via IFTTT

Harrison Brown of the National Academy of Sciences published a chart in the September 1970 issue of Scientific American projecting that humanity would run out of copper shortly after 2000; lead, zinc, tin, gold, and silver would be gone before 1990. Brown claimed that his estimates took into account the possibilities that “new reserves will be discovered by exploration or created by innovation.” The February 2, 1970, issue of Time quoted the ecologist Kenneth Watt: “By the year 2000, if present trends continue, we will be using up crude oil at such a rate…that there won’t be any more crude oil.”

I report these dire prognostications from five decades ago in my column Earth Day Turns 50.

Today economist Gale L. Pooley and Human Progress website proprietor Marian L. Tupy show how badly mistaken these prophecies of imminent resource depletion have turned in their updated Simon Abundance Index calculations. The index is named after University of Maryland economist Julian Simon, who won his famous bet on resource trends in 1990 against perennial doomsayer Stanford University biologist Paul Ehrlich.

In October 1980, Ehrlich and Simon drew up a futures contract obligating Simon to sell Ehrlich the same quantities that could be purchased for $1,000 of five metals (copper, chromium, nickel, tin, and tungsten) 10 years later at 1980 prices. If the combined prices rose above $1,000, Simon would pay the difference. If they fell below $1,000, Ehrlich would pay Simon the difference. In October 1990, Ehrlich mailed Simon a check for $576.07. There was no note in the letter. The price of the basket of metals chosen by Ehrlich and his cohorts had fallen by more than 50 percent.

Tupy and Pooley calculate the index using “time price” as a way to measure resource abundance. “The time price denotes the amount of time that a person has to work in order to earn enough money to buy something. To calculate the time price, the nominal money price is divided by nominal hourly income,” they explain.

Using this measure, they report:

The average time price of 50 commodities fell by 74.2 percent. That means that for the same length of time that a person needed to work to earn enough money to buy one unit in our basket of 50 commodities in 1980, he or she could buy 3.87 units in 2019. In other words, the average person saw his or her level of abundance rise by 287.4 percent. That amounts to a compound annual growth rate of 3.63 percent and implies a doubling of abundance every 19.45 year.

The index has a base year of 1980 and a base value of 100. In 2019, the Index reached a level of 670.9. That is to say that the Earth as a whole was 570.9 percent more abundant in 2019 than it was in 1980.

How is this possible? Tupy and Pooley explain:

Simon’s revolutionary insights with regard to the mutually beneficial interaction between population growth and availability of natural resources, which our research confirms, may be counterintuitive, but they are real. The world’s resources are finite in the same way that the number of piano keys is finite. The instrument has only 88 notes, but those can be played in an infinite variety of ways. The same applies to our planet. The Earth’s atoms may be fixed, but the possible combinations of those atoms are infinite. What matters, then, is not the physical limits of our planet, but human freedom to experiment and reimagine the use of resources that we have.

Happy Earth Day, everybody!

from Latest – Reason.com https://ift.tt/2Kqml7t
via IFTTT

Two studies by researchers associated with Stanford University and the University of Southern California using antibody blood tests have estimated that many more people have been infected with the novel coronavirus that causes COVID-19 than confirmed diagnoses would indicate. How many more people? In the Santa Clara (Silicon Valley) study, the researchers estimated that coronavirus infections at the beginning of April were 50- to 85-fold more than the number of confirmed cases at that time. In the Los Angeles County study, they estimated the infection rate at 28 to 55 times higher than confirmed cases in that jurisdiction.

If true, these findings of vastly more widespread rates of infection would suggest that the disease is much less lethal than the crude case fatality rates suggest. (A point noted by me and other Reason colleagues in reporting on these studies.) Not surprisingly, these findings have proved quite controversial, particularly drawing the critical attention of statisticians from other institutions.

Since the Los Angeles County study has apparently not yet been published online, let’s focus on the chief objections to the Santa Clara study. Those include arguments that (1) the prevalence rates among people tested for antibodies to coronavirus published in the study are mostly, or even entirely, very likely due to false positives; (2) the results are skewed because it was enriched with participants who were more likely to have been exposed to the virus than the general population of the county; and (3) that COVID-19 infections must be very widespread to produce the excess mortality seen in places like New York City, e.g, essentially most New Yorkers must already have been infected, suggesting an unprecedented level of contagiousness.

First, let’s look at the problem of false positives. The researchers’ blood test survey in Santa Clara County found that 1.5 percent (50 out of 3,330 people tested) were positive for the presence of antibodies to the coronavirus. So the question is, how many of the 50 positives they found might be false positives?

Critics like Columbia University statistician Andrew Gelman and Silicon Valley entrepreneur Balij Srinivasan focus on the sensitivity (true positive rate) and specificity (true negative rate) of the blood test used by the researchers in the Santa Clara study. Without going into detail, they argue that it is possible that the vast majority of the positives generated by the blood test used by the researchers could be false positives. On the other hand, the lead author of the Santa Clara study, Jay Bhattacharya, tells Science, “The argument that the test is not specific enough to detect real positives is deeply flawed.”

Another problem critics allege specifically with the Santa Clara study is that the research participants were recruited via Facebook. One concern with using this recruitment method is that it might result in a group of county residents who signed up for testing because they feared that they may been exposed to the virus. Such non-random study recruitment could boost the number of positives tested, thus skewing later calculations of overall prevalence.

Finally, the researchers’ estimate of an infection fatality rate (IFR) for COVID-19 of between 0.12 and 0.2 percent derived from their demographic adjustments to the raw rate of 1.5 percent positives suggests extremely high rates of infection and contagiousness. “In order to generate these thousands of excess deaths [from COVID-19} in just a few weeks with the very low infection fatality rate of 0.12–0.2% claimed in the paper, the virus would have to be wildly contagious,” points out Srinivasan.

As I noted earlier, given the number of deaths in New York City from COVID-19 such a relatively low IFR would implausibly suggest that essentially every resident of the Big Apple has already been infected by the virus.

The researchers tell me via email that they are working to address these and other objections and will soon release a revised version of the Santa Clara study soon. Stay tuned.

from Latest – Reason.com https://ift.tt/2yAIOMu
via IFTTT