Category: reason

What do you do when a rival professor is about to land your dream job teaching creative writing at the University of Michigan? If you’re “J.”, the villain of a terrific, horrifying story in today’s New York Times, you file a series of anonymous, false sexual misconduct allegations against the professor and her wife—trusting that Title IX’s byzantine investigative process and the accompanying rumors will sabotage their career and make you the next job candidate in line.

J.’s victims were Sarah Viren and Marta Tecedor, a married pair of professors at Arizona State University (ASU). Their story—composed for The Times by Viren—is worth reading in full, but to summarize: Viren received a job offer at Michigan, and Tecedor initiated the process of finding one as well (universities often make “partner hires” when one half of a married academic couple is interested in moving). J. believed he was a runner-up for Viren’s position, and in order to take her out of the running, he sent emails to ASU’s sexual misconduct investigator—who operates under the auspices of Title IX, the federal law mandating sex and gender equity in education—accusing fist Tecedor and then later Viren as well of soliciting sex from unwilling students.

Viren and Tecedor had never done any of the things they were accused of doing, but the emails were authored under fake names, and it was thus extremely exhausting for them to prove their innocence. Moreover, the Title IX investigator, “Melanie,” was only tangentially interested in whether the accusations were false. Here is a direct quote that Viren obtained by recording her Title IX interviews:

I reached for a tissue. Melanie was young, probably in her late 20s or early 30s, with long straight hair and an impassive face. “You’re fine,” she said, though it was clear I wasn’t.

“If you can figure out that it’s an outsider or somebody from the outside that’s posing as a student,” I finally said, “can you just close the investigation?”

“Good question,” Melanie responded, her voice bright again. “Because of the funding that we receive through Title IX, we’re required to investigate everything. And with that we want to really run everything to the ground.”

I nodded. I knew that universities could lose federal funding if they didn’t show they were protecting students, and I was glad — I am glad — for that. But I was still confused. Melanie continued. “If we find out that — and Marta asked the question — if we find out that the information is false, for our purposes that’s not really our end goal; we’re just trying to determine whether or not there’s a policy violation.”

The email accusations were incredible from the start, but the university insisted on proceeding as if they were real—indeed, the university felt obligated under federal law to take the matter seriously.

In the end, Viren and Tecedor had to do much of the detective work themselves, finally deducing J.’s identity and building a convincing enough case that they were found not responsible for violating Title IX. By then, however, it was too late for Tecedor to receive a partner hire, and the pair lost out on their dream move to Michigan. They also accrued $10,000 in legal fees while dealing with J. And as part of a settlement, they are prohibited from publicly naming him.

It’s an appalling travesty of justice (despite technically being an outcome in their favor), albeit one that is common to Title IX adjudication. I would hate for Times readers to come away with the impression that this was some sort of exceptional scenario. I’ve written numerous stories about students, administrators, and professors using the Title IX process to exact vengeance on their enemies. Take the cases of University of New Mexico Professor Nick Flor, former Michigan State medical student “Dev,” or Harvard University’s Damilare Sonoiki and Bruce Hay. (These are just the most recent, most outlandish stories, but I’ve covered dozens of others.)

The ordeals suffered by academics like Viren, Tecedor, Flor, and Hay are just part of the reason that Education Secretary Betsy DeVos was absolutely right to revise the federal government’s Title IX guidance to colleges and universities.

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This is relying on the data on WorldoMeters.info, which reports 475 new deaths yesterday in Italy, for a total of 2978, and 11 new deaths in China, for a total of 3237. I realize, of course, that there’s always the risk of different reporting rates and death diagnosis rates in different countries.

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“I like it when people are thinking I’m overreacting,” the now-ubiquitous Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases, told CNN this week, “because that means we’re doing it just right.” Fauci’s point, as he explained to reporters on Monday, is that “when you’re dealing with an emerging infectious disease outbreak, you are always behind where you think you are if you think that today reflects where you really are.” That’s especially true with a disease like COVID-19, since the vast majority of infections involve mild to nonexistent symptoms. In the absence of widespread testing, the number of known cases therefore creates a highly misleading picture of the epidemic.

But Fauci’s comments raise the obvious question of how we can know when the government is overreacting. Although The New York Times calls that “a taboo question,” it is one we need to grapple with, given the potentially enormous economic impact of aggressive COVID-19 control measures.

Fauci was referring to the guidelines that the Trump administration issued on Monday, which recommend that elderly Americans and people with serious pre-existing medical conditions remain at home. They also advise the general public to avoid bars, restaurants, unnecessary travel, and groups of more than 10 people. But local governments have gone much further than that, in some cases ordering businesses to close and confining millions of people to their homes except for “essential” purposes.

Some commentators think such draconian measures should be imposed at the national level. Cornell law professor Michael Dorf argues that the federal government needs to “lock us down” and suspend the writ of habeas corpus to “save the nation.”

Dorf glides over the constitutional issues raised by such a policy. “What about civil liberties?” he writes. “In normal times, the government may not confine people for the public safety absent ‘clear and convincing evidence’ that they pose a danger to themselves or others. One would hope that during a pandemic the courts would construe that standard on a population basis rather than one by one.”

Dorf also hopes the courts will accede to a creative interpretation of the Suspension Clause, which says “the privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” Does the international spread of the COVID-19 virus constitute an “invasion”? Maybe! “The short answer is no one knows, because Congress has only ever suspended habeas in wartime,” Dorf says. “But there is reason to think that the courts would dismiss a habeas case following nearly any congressional suspension.”

Civil liberties aside, the combination of travel restrictions, business closures, and lockdowns will pack an economic wallop. Official numbers from China, the country that has imposed the most sweeping restrictions in response to COVID-19, indicate that industrial production dropped by 13.5 percent over two months, the services index fell by 13 percent, exports dropped by 16.5 percent, retail sales by 20.5 percent, and fixed asset investment by 24.5 percent. By one measure, unemployment rose above 6 percent.

What about the United States? The Associated Press notes that “the vast changes deemed necessary to defeat the virus—people and companies no longer engaging with each other—are bringing everyday business to a halt and likely delivering a death blow to the longest economic expansion on record.” A.P. cites an estimate by Gregory Daco, chief U.S. economist at Oxford Economics, who “expects the American economy to shrink at a staggering 12% annual rate in the April-June quarter,” which “would be the most dismal quarter on record dating back to 1947.”  Daco “thinks the economy will post zero growth for 2020 as a whole.”

Oxford University economist Ian Goldin is even more pessimistic, suggesting that the response to COVID-19 could lead to an “economic crisis” in the United States that “perhaps even eclips[es] that of 2008,” which cost an estimated $22 trillion. McKinsey & Company likewise sketches a scenario in which “the global economic impact is severe, approaching the global financial crisis of 2008–09.”

While such projections are highly uncertain, so are the benefits of extreme measures like those recommended by Michael Dorf. But we can roughly estimate the maximum possible value of such interventions, which gives us some idea of how much economic pain can be rationally justified.

In the worst-case scenario imagined by the U.S. Centers for Disease Control and Prevention—a projection that assumes efforts at containment and suppression are largely ineffectual—COVID-19 causes 1.7 million deaths in the United States. Applying the “value of a statistical life” (VSL) used by the Environmental Protection Agency (EPA) to measure the cost-effectiveness of regulations (about $8 million in current dollars), the cost of that outcome would be enormous: $13.6 trillion. Using the somewhat higher VSL calculated by Vanderbilt University economist W. Kip Viscusi based on labor market data ($9.6 million), the cost would be $16.3 trillion.

But even assuming that extreme measures are 100 percent effective at preventing that loss (which they certainly will not be), the economic cost, if it is similar to what happened during the Great Recession, would be larger. Those VSL-derived numbers do not include the medical and economic costs associated with nonfatal COVID-19 cases that might be prevented by aggressive intervention. But it is still probably a generous estimate of potential benefits from curtailing the epidemic, because no intervention will be completely effective. Furthermore, the EPA and Viscusi VSLs are arguably excessive in this case, since COVID-19 deaths are heavily concentrated among the elderly, meaning fewer years of life lost on average.

The cost-benefit analysis looks better if you boost the number of deaths expected in the worst-case scenario. Researchers at Imperial College London, for instance, project a maximum of 2.2 million COVID-19 deaths in the United States, which would be a loss similar to the cost of the Great Recession based on Viscusi’s VSL. But that projection is based on the “absence of any control measures or spontaneous changes in individual behaviour,” which is hardly realistic.

We can scale back both the expected number of deaths without drastic action and the economic impact of trying to prevent them, but we still seem to be left with a big imbalance between costs and benefits. Something like a nationwide lockdown makes sense only if you combine a low estimate of the economic cost with high estimates of the policy’s effectiveness and the number of deaths that would otherwise occur.

“You are past the time of monetizing these decisions,” New York Gov. Andrew Cuomo told The New York Times today. “You are at a point of deciding: How many people are going to live, how many people are going to die?”

That formulation implies a much higher level of certainty about the efficacy of COVID-19 control measures than anyone can claim, and it completely ignores the tradeoffs they entail. When government agencies consider imposing regulations aimed at protecting health or safety, they routinely consider not only the number of deaths that might be prevented but also the cost of doing so. That makes sense, because finite resources spent to reduce one kind of risk, depending on the payoff, might better be spent or invested elsewhere, possibly in ways that would save more lives. But in the face of the COVID-19 epidemic, politicians seem to be proceeding on the dangerous assumption that cost-effectiveness does not matter.

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The coronavirus epidemic has led to major restrictions on our freedom to assemble, on our right to gather for religious worship, on freedom to operate one’s business, and even on ordinary freedom of movement. These are indubitably serious restrictions on civil liberties; but, as Ed Richards and Keith Whittington have noted, American law and practice has long seen such extraordinary (and transitory) threats to life as justifying extraordinary (and temporary) constraints. And indeed we have seen past quarantines, which have indeed been temporary. (The clearest permanent and serious restraint on liberty has been mandatory immunization, but I think on balance that has proved to be a justifiable restraint.)

Vigilance is always a good idea when it comes to liberty, especially in extraordinary times; but vigilance is also a good idea when it comes to protecting our and our fellow citizens’ lives. I appreciate Benjamin Franklin’s line that, “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety” (though the historical background to it is interesting and complicated). But one might equally say that “Those who would give up essential Safety, to purchase a little temporary Liberty, deserve neither Liberty nor Safety.”

It’s all about what’s “essential” and what’s “a little,” of course; but such tradeoffs are a necessary part of life, and here the tradeoff seems to me—though in the face of immense uncertainty, and therefore immense risk of error—to cut in favor of certain kinds of restrictions. That’s why our blog subtitle says we are “Often libertarian,” though I think that even many thoroughgoing libertarians realize that a strong presumption of liberty from government restriction can’t equate to a categorical rule.

Now I think it’s also very important to be concerned about what effect restrictions might have on the future (see my Mechanisms of the Slippery Slope article). But here the restrictions have the virtues of their vices: Precisely because they are so broad and so onerous, it seems very unlikely that people (in government or out) will want to see their massive economic and personal costs extended any longer than necessary.

The matter might be different if the restrictions were imposed on small and disliked groups. I’m reminded of Lincoln’s argument defending military arrests of certain critics of the Civil War:

Nor am I able to appreciate the danger … that the American people will by means of military arrests during the rebellion lose the right of public discussion, the liberty of speech and the press, the law of evidence, trial by jury, and habeas corpus throughout the indefinite peaceable future which I trust lies before them, any more than I am able to believe that a man could contract so strong an appetite for emetics [that is to say, substances that induce vomiting] during temporary illness as to persist in feeding upon them during the remainder of his healthful life.

On one hand, Lincoln was right that, after the end of the Civil War (and of military Reconstruction in the South), free speech in America continued for many decades, largely unimpeded by the legacy of wartime suppression. (There were some restrictions that we would view as improper today, but on balance speech was quite free, and probably freer than before the war.) To the extent that onerous restrictions were eventually imposed during and after World War I (and to some extent not long before, in response to anarchist violence), they probably would have been largely the same regardless of what Lincoln had done half a century before. On the other hand, precisely because military arrests and restrictions on anti-war speech target a small group, the public at large might well retain an appetite for such restrictions in the future—and is especially likely to misjudge the current costs and benefits of the restrictions as well.

Yet the costs here are being borne by most Americans, whether directly or indirectly; and even though no costs are ever spread equally, they are spread so broadly that Lincoln’s insight seems especially apt. The restrictions we’re facing are bitter pills, but their very bitterness offers a good deal of assurance that we won’t, in the long term, keep consuming them when there is no real danger.

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From the available data, says New York University law professor Richard Epstein, “it seems more probable than not that the total number of cases worldwide will peak out at well under 1 million, with the total number of deaths at under 50,000…In the United States, if the total death toll increases at about the same rate, the current 67 deaths should translate into about 500 deaths at the end.”

In the latest Reason Interview podcast, Epstein, who is also a fellow at the University of Chicago’s Center for Clinical Medical Ethics and a podcaster and columnist at Ricochet, explains his math, which draws on his work dealing with the AIDS epidemic in the 1980s and ’90s. He also tells Nick Gillespie that the stimulus plans being floated are unlikely to help the economy in the short run and cause major problems in the long run, why he thinks local and state governments are overreacting by shutting down businesses and schools, and why he expects the crisis to ease up in a few months.

Audio production by Ian Keyser.

Photo credit: Richard Epstein speaks during the Margaret Thatcher Conference on Liberty, Niklas Halle’n/Newscom

Related articles:

“Coronavirus Isn’t a Pandemic,” Richard Epstein, Ricochet

“Avoid Redistribution Schemes To Limit Coronavirus Fallout,” Richard Epstein, Las Vegas Review-Journal

The Libertarian podcast archives, Ricochet

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