Category: reason

In their desperation to get back to work, some Americans are taking to the streets to demand that the government end the quarantine. Comedian Patton Oswalt is unsympathetic.

“Anne Frank spent 2 years hiding in an attic and we’ve been home for just over a month with Netflix, food delivery & video games and there are people risking viral death by storming state capital buildings & screaming, ‘Open Fuddruckers!'” he tweeted on Saturday.

This is hardly Oswalt’s first display of smug liberal condescension: His tweet denouncing Covington Catholic High School student Nick Sandmann as a “leering, privileged little shit” was one of the most vile celebrity attacks on the wrongly maligned teenager.

It may be trivially simple for the Emmy Award-winning comic—and voice of Remy in Pixar’s Ratatouille—to stay at home, watch Netflix, order carry-out, and play video games for a few weeks. (Writer and podcaster Bridget Phetasy compared Oswalt to Marie Antoinette’s apocryphal indifference toward the hungry masses, tweeting: “Let them eat kale!”) But many auto mechanics, coffee baristas, and small business owners can’t afford this so easily. They are watching their financial situations become more and more precarious with each day that extreme social distancing continues. Oswalt suggested that the uncultured rubes are crazy to want Fuddruckers to re-open; people whose livelihoods depend upon places like Fuddruckers might see things differently.

That’s why it’s important for those criticizing misguided protesting efforts—including media figures who increasingly appear to be taking the view that you would have to be a deranged rightwinger to want social distancing to end—not to resort to sneering at the less fortunate. (For example: A guest on MSNBC recently called the protesters, “the Fox News Nazi confederate death cult rump of the Republican Party.) These are terrifying times, and the prospect of hundreds of thousands of deaths means there is very good reason for policymakers to proceed cautiously with reopening. But both federal and state governments must consider the long-term practicality of their coronavirus prevention plans, including whether people will be willing to obey stay-at-home orders for much longer.

While these efforts to slow the spread of COVID-19 remain broadly popular, some Americans are understandably growing frustrated. Protests have cropped up in several states—most notably Michigan, where opposition to the draconian quarantine dictates of Gov. Gretchen Whitmer (D–Mich.) culminated in a drive-through protest of the state capitol last week. Many of the protesters did indeed maintain social distancing, stayed in their cars, or wore masks, though some of the attendees—zanier right-wing types—did not.

Political protests, be they left-leaning or right-leaning, always invite an eclectic crowd: from concerned citizens motivated by legitimate frustrations to professional activists desperate to attach a pro or anti-Trump spin to seemingly any cause. Their tactics, goals, and organizational structure often attract well-deserved criticism: Some of the lockdown protests, for instance, seem to be generically pro-Trump in character, disconnected from the reality that thus far Trump has supported the shutdowns at every critical juncture. Indeed, it’s quite odd to hear protesters chanting “Fire Fauci” while waving MAGA signs: Trump has praised Fauci incessantly and never fails to heed his advice, the media’s attempt create a narrative of mounting tension between the two notwithstanding.

But there are legitimate grievances for protesters to air. Whitmer’s stay-at-home orders were, as Reason‘s Billy Binion put it, a “hot mess,” prohibiting travel between residences (even to relatively uninhabited areas), buying gardening supplies, and motorboats (but not boats with motors). Authorities in New York City have called on people to report each other for failing to abide by the most stringent social distancing measures. People have been stopped, shamed, and arrested for merely going outdoors. Voluntary compliance with social distancing has been remarkable, but forcibly constraining every last person has diminishing returns, and is not a good use of government resources.

That does not mean the quarantine protesters are, as conservative pundit Stephen Moore put it, “modern-day Rosa Parks.” But some of them are justifiably upset, and their frustration should be neither mocked nor ignored.

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Here’s an excerpt from a 2016 Ninth Circuit oral argument in an employment discrimination case, Reynaga v. Roseburg Forest Prods.; the questioner was the late Judge Harry Pregerson, a highly respected liberal judge:

PLAINTIFF’S LAWYER: I believe at one time there was a Black person there. It’s a, it’s a very White part of the, the world.

JUDGE: Now, Mr. Branaugh, he kept making references like this to your client and these are all in the record. He used to—he, he would refer to Black people as niggers.

LAWYER: Yes.

JUDGE: As niggers. And then Branaugh told Reynaga in September of 2009 after Reynaga received hunting tags for a second year in a row, “I’m a true believer that we should close the borders to keep motherfuckers like you from coming up here and killing our elk.”

LAWYER: He did.

JUDGE: He’s saying that to him?

LAWYER: Yes. It’s undisputed.

JUDGE: And then he left a printed email in the break room that had an article about Obama being an illegal alien and stated that, our borders are like sieves.

LAWYER: Yes. Yes.

JUDGE: And [inaudible] he jury could take these as reference, all of these as reference to, to, to the plaintiff here.

My question: Say there were black lawyers in the audience—perhaps the arguing lawyers’ junior associates, who came to help and to learn; law clerks (young lawyers working for the judges and preparing to draft the opinions); other lawyers whose cases were up later that morning; in some other case like this one, the arguing lawyers (these ones appeared to be white, but in another they could easily have been black); or anyone else. How do you think they likely reacted to the judge’s accurately quoting the record, in saying that Branaugh had called Blacks “niggers”?

1. They were traumatized or at least highly pained by even hearing the judge say the word—not just rightly angry that defendant’s employee Branaugh had used the word in his workplace back in 2009 (an anger that they would have and should have felt even had they heard him described as saying “the n-word” instead), but deeply upset by the very fact that the judge had accurately quoted the word from the record in court. Chief Judge Sidney Thomas should have apologized for the pain the judge had caused black lawyers.
2. They weren’t traumatized or highly pained; instead, they listened to this pretty much as they would listen to most other unpleasant facts about unpleasant people doing or saying unpleasant things. They were just doing what lawyers do: They were just trying to think about how to best deal with this line of argument. Or they were trying to figure out what the judge and his colleagues were likely thinking about the case, so they could give their clients a sensible prediction of how the case would come out. Or, if they were law clerks, they were thinking about how to draft the eventual opinion. Or they were trying to learn more about the judge’s approach to argument in preparing for their own argument. Indeed, if they were momentarily slightly upset, they made sure to suppress this reaction, so they could continue effectively performing their lawyerly tasks.

My sense is that the answer is (2). And, because of that, I think we should expect law students to be able to deal with such words just as we expect law clerks and practicing lawyers to do the same.

Indeed, I think we would be doing our students a disservice by operating our law schools as if students were entitled to be shielded from even hearing such words quoted. Taking such a view, and conveying it to students, would poorly prepare them to become lawyers in a world where ugly words are a staple of litigation, heard eventually at oral argument but before that quoted by clients, witnesses, colleagues, and opposing counsel, all discussing the facts of the case. And it would poorly prepare them for their first task as lawyers being to learn the unvarnished truth, whether about the facts of the case or what a judge is thinking or how some witness or adversary sees the world (even if, after that, the lawyer has to varnish it hard indeed to suit the client’s agenda).

Now I acknowledge that the judge could have used a euphemism instead, both in oral argument and in the opinion (which quotes the word without euphemism three times, as more than 10,000 other court opinions do). But he didn’t, perhaps because he thought that a Ninth Circuit courtroom is a place for people to discuss the facts of the case candidly and precisely (my view of a classroom as well). In any event, my question here is simply how lawyers in the audience likely reacted to this choice, a choice made in many other courtrooms as well.

But that’s just my conjecture: Tell me what you think, in the comments.

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4/20/1920: Missouri v. Holland decided.

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There’s no denying that a big chunk of the economy feels pretty screwed up right now for millions of working-class and middle-class Americans. There’s a widespread sense that obtaining housing, education, and health care was once fairly easy and cheap but has now become mind-bogglingly complex and expensive. Addressing anxiety around the increasing elusiveness of these building blocks of an archetypical American life is at the heart of virtually all rhetoric in the 2020 election cycle, with everyone from democratic socialist presidential hopeful Bernie Sanders to nationalist conservative Sen. Josh Hawley (R–Mo.) hastening to offer funeral orations for the American Dream—while also promising to resurrect it.

What follows is a forensic investigation into how the markets for health care, higher education, and residential housing got broken. The goal is not, in this issue, to offer a comprehensive set of solutions, though you’ll see hints about possible remedies throughout. Nor is it to challenge the premise that times are tough. There is much to celebrate in the modern American economy, but pointing out the ways in which things are pretty good overall doesn’t go far with people who feel like they are drowning.

Instead, we went looking for the moments at which these parts of our economy veered off track. When you reject the too-simple narrative about greedy corporations bleeding ordinary Americans dry, more complicated and (unfortunately) more intractable causes for the current crisis emerge. In each sector, well-intentioned efforts by the government to address real problems created the conditions for a vicious cycle of rent-seeking, cronyism, innovation suppression, crippled pricing mechanisms, spiraling spending, and growing debt. These are stories about how seemingly small policy changes can have big effects on incentives and choices down the line, for politicians and citizens alike.

If we’re going to restructure American politics around restoring some version of the American Dream—as both Republicans and Democrats seem keen to do—we should at least know what we’re facing and why. When you’re trying to fix something, it’s important to understand how it got broken in the first place.

For Reason‘s May 2020 issue deep-dive into how things got so bad, read:

Can’t Afford Your Rent? Blame Herbert Hoover by Jonathan Rothwell

The feds pushed cities to implement zoning restrictions. High prices and social inequality were the inevitable results.

Student Loans Aren’t Working by Mike Riggs

But free college won’t fix this slow-moving catastrophe.

How Doctors Broke Health Care by Christy Ford Chapin

And politicians made things even worse

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I am pleased to have been able to join the Cato Institute’s amicus brief urging the Supreme Court to consider Lech v. Jackson, a case in which the US Court of Appeals for the Tenth Circuit ruled there is no taking requiring compensation in a situation where the police deliberately destroyed an innocent family’s home in order to catch a suspected shoplifter who had holed up inside. The brief is available here. I presented my take on the case in greater detail  in this post.

Thanks to Trevor Burrus, Michael Collins, and Ilya Shapiro of Cato, for their excellent work on the brief. While I have written a number of amicus briefs on behalf of Cato and other organizations, in this case I was mainly client rather than lawyer, helping with the drafting only in an advisory role.

It is perhaps worth noting the key way in which this case differs from some other situations where the government uses its “police power” to destroy property or severely restrict owners rights, yet courts generally hold there is no taking, as in recent litigation over the coronavirus shutdown. In these types of cases, the property itself or the owner’s use of it poses a threat to public health or safety. By contrast, there is no such blanket “police power” exception to takings liability when the owner has done nothing wrong, but his or her property is taken or destroyed by the government in order to protect the public against some threat that does not arise from the property itself or the owner’s use of it. Such cases are no different from situations where the government destroys a private home  in order to build a road or a military base on the site. The government’s actions may be well-justified, but it must still compensate the owner.

Since the counsel of record on the brief is Ilya Shapiro, with whom I am often confused, you may wish to check out my 2018 post on how to avoid #IlyaConfusion and tell the two Ilyas apart. As that post explains, we differ on a number of issues. But we are definitely on the same page when it come to this case! Both of us—and, hopefully, all Ilyas everywhere—want the Supreme Court to take this case and overrule the lower court decision.

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