Category: reason

Were it not for the pandemic, last weekend would have been the Federalist Society’s annual student symposium at the University of Michigan. But in an admirably quick adaptation to the circumstances, the Federalist Society instead hosted the entire symposium online via videoconferencing. One key event of the symposium is the awarding of the Joseph Story Award (previously the Paul M Bator Award), which is given annually to “a young academic (40 and under) who has demonstrated excellence in legal scholarship, a commitment to teaching, a concern for students, and who has made a significant public impact in a manner that advances the rule of law in a free society.”

This year’s winner was my friend and co-author, and our co-conspirator, Stephen Sachs of Duke. Steve’s award marks a four-year streak of awarding this prize (and the Bator award before it) to members of the Volokh Conspiracy, and brings the total number of Conspiracy awards up to eleven. (I’m not aware of a law school that has more than three.)

You can read/watch the presentation of the award here. My favorite part of his remarks were his comments about the Federalist Society itself:

Third, I’m honored to receive this award from the Federalist Society, which similarly combines a commitment to intellectual discovery with real-world accomplishment.

I wanted to become a lawyer, partly from my dad’s example, but also because, as a lawyer, you could go into a library, do some research, make an argument—and the hope is, at the end of it, the world would be different. This is the ideal that Hamilton described in the very first paragraph of The Federalist No. 1—that societies might be capable of “establishing good government from reflection and choice,” and not “forever destined to depend for their political constitutions on accident and force.”

I don’t know of any other organization, in America or elsewhere, whose members are simultaneously at the forefront of serious scholarship and at the forefront of government in quite the same way.

Finally, I’m particularly honored to receive this award because it shows something very special about FedSoc, something that’s unfortunately in diminishing supply today.

When I was a student, I wasn’t sure about joining FedSoc. I was still figuring out what I thought about things; I would have never attended one of these symposia; and I would never have expected to receive an award like this one.

But one of FedSoc’s true advantages, and the point I want to leave you with tonight, is that this openness, this willingness to bring people in to think things through and get to better answers, is its extraordinary strength.

By current standards, FedSoc’s politics are wildly diverse: they run the whole gamut from conservative to libertarian! That might not seem like much. But what it means is that, on any one issue, you can find someone in FedSoc who passionately but respectfully disagrees with you.

That’s true for controversial issues, like abortion or same-sex marriage or presidential candidates.

And it’s true for even more controversial issues, like economic liberty or industrial policy or the unitary executive or whether Erie Railroad v. Tompkins should be overruled. (Which it should.)

FedSoc has made the choice, and it’s a deliberate choice, not to make endorsements or write manifestos or establish litmus tests. There are no Thirty-Nine Articles which every one of you had to sign. Instead, there are just broad commitments—including a commitment to discussion, to reasoning together, as the way to get things right.

Now, FedSoc isn’t just a debating society: there really are positions that most people in it share. And these ideas matter.

The point of FedSoc is not just to have a good time talking (though we do).

And it’s not just to find people you agree with (though that can be a comfort).

It’s actually to reach the truth, talking it over with those with whom you share enough to make your disagreements meaningful.

In an age when disagreement is often treated like disloyalty, and when curiosity is often confused with cowardice, a commitment to open discussion and truth is like water in the desert.

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“Pandemics Kill Compassion, Too,” is the headline over a David Brooks column in the New York Times predicting that the coronavirus is about to “inflame class divisions.”

Well, if The New York Times editorial page is going to use the pandemic to confirm its prior assumptions, let me seize it to confirm mine, which is that news organizations can take the same set of facts and spin them in radically different ways.

Where Brooks sees a heightening of class divisions and a death of compassion, I see a narrowing of class divisions and an amazing outbreak of compassion.

On the class division front, for sure, it’s better to be quarantined, or socially distanced, in a mansion than in a small apartment or in a homeless shelter. But the billionaire with floorside Final Four seats and a private plane to get him there and back is almost precisely as out-of-luck as the low-wage worker who was planning to watch it on television. The basketball game is equally canceled for both of them.

All those trillions of dollars of stock market wealth “incinerated” over the past few weeks did more to decrease inequality in this country than torrents of rhetoric from Sens. Elizabeth Warren (D–Mass.) and Bernie Sanders (I–Vt.) about never-to-be-implemented “wealth tax” plans. Those who took the largest losses are the people with the biggest retirement accounts.

I’ve seen the argument that white-collar professionals who can work from home and will keep getting paid are advantaged over, say, bartenders or waiters who find themselves suddenly unemployed, or over small retail business-owners who are seeing customers disappear. There’s probably something to that. But we have a choice about how to view that. One can, like Brooks, focus on, and magnify, the “class divisions.” Or one can observe that this pandemic is one of the few things left that leaves no one at all truly untouched, even those who avoid being infected by the virus.

The same depends-on-how-you-look-at-it approach applies to the compassion questions. Plenty of people have chosen to focus, negatively, on young, healthy people who went ahead and socialized in bars and restaurants on the theory that the virus was unlikely to affect them seriously. In so doing, they acted in callous disregard for how their action might speed the spread of the virus and thus potentially contribute to overwhelming the health care system, consigning elderly or previously sick individuals who get COVID-19 to death.

But many, many individuals and institutions—businesses, houses of worship, schools, governments—have chosen dramatically to modify their normal routines, at great cost, precisely for the purpose of slowing the spread of the virus, preventing the health care system from being overwhelmed, and making sure doctors and hospital beds are available for elderly or previously individuals who get Covid-19 and need the care.

Many other necessary employees—the checkout clerks at Walmart and Trader Joe’s, the gas station attendant, police officers and firefighters—are showing up for work, notwithstanding that by doing so they are exposing themselves to a greater risk of infection. Whether that amounts to “compassion” or simply professionalism is an interesting question, but it is less bleak than the Brooks headline would have it.

If there is a “division” that stands to be heightened by the novel coronavirus or by Covid-19 it seems less likely to me to be the class one and more likely to be a generational one. As 70-something-year-olds President Donald Trump, former vice president Joe Biden, and Sanders compete in a presidential campaign, young people are being asked to stay home and contract the economy in part so that their elders don’t die. Cue the “OK, boomer” comments. So far, the youngsters are taking it with, all told, minimal grumbling and remarkable good cheer.

How long that is sustainable is an open question. But if history is any guide, the pandemic may reduce polarization rather than accentuate it. It may add to a sense of common purpose and compassion, rather than destroy it. At some point, we may all even be nostalgic together for the moment not so long ago when people were bitterly complaining about class divisions and income inequality rather than singlemindedly focused on fighting disease and death.

Ira Stoll is editor of FutureOfCapitalism.com and author of JFK, Conservative.

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3/17/1777: Chief Justice Roger Brooke Taney’s birthday.

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One of the most important issues for people worried about the consequences of marijuana legalization is the extent to which cannabis serves as a substitute for alcohol, which is more dangerous in several significant ways. Recent evidence from Canada and the United States reinforces the hypothesis that people tend to drink less when marijuana is legally available, although the issue is far from settled.

During 2019, the first full year of legalization in Canada, the volume of beer sold there fell by 3 percent, the Financial Post reports. That drop was large compared to the annual declines seen in the previous five years, which averaged 0.3 percent. Vivien Azer, an industry analyst quoted by the Post, said the accelerated slide was probably related to marijuana legalization, and she predicted that the expansion of cannabis products available from legal sources—which as of January included vapes, edibles, and beverages as well as buds—will “perpetuate this trend.”

More rigorous evidence on the relationship between marijuana use and drinking comes from a study reported in the March 2020 issue of the journal Addictive Behaviors. Based on nationwide survey data covering a 10-year period, Zoe Alley and two other researchers at Oregon State University found that college students in U.S. states where marijuana had been legalized for recreational use were less likely to report binge drinking than college students in other states, after taking into account pre-existing trends and several potential confounding variables. The difference was statistically significant among students 21 or older, the cutoff for legally purchasing marijuana.

This apparent substitution effect, the authors note, is consistent with earlier studies that found “reductions in alcohol consumption (especially binge drinking in young adults) and alcohol-related traffic accidents” following the legalization of medical marijuana. A causal connection is plausible in those studies if we assume that some ostensibly medical use is actually recreational (or that some drinking is functionally medical), such that cannabis consumption would displace the use of alcohol.

Prior research, Alley et al. note, has found “a pronounced decrease in marijuana use that coincides with marked increases in alcohol use after minors reach the legal drinking age,” which suggests that some young people replace marijuana with alcohol once they are legally allowed to drink. The researchers speculate that “legalizing recreational marijuana use may temper this effect, such that college students over the age of 21 who otherwise would have engaged in binge drinking continue using marijuana instead.”

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While the earliest recording of a human voice dates to 1860, researchers at the University of London recently announced the recreation of a voice that is much older. Using a CT scanner and a 3D printer, they made physical models of the mouth and throat of a 3,000-year-old mummified Egyptian named Nesyamun. By pairing those models with an electronic larynx, the team has thus far been able to eek a single “eh” out of the long-dead priest.

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The legislature of Berlin, Germany, has agreed to pay compensation to two men who were placed as children, at age six and age 14 respectively, by the city-state with known pedophiles. Between 1969 and 2004, the government placed at least nine runaway boys with convicted sex offenders. The program was the brainchild of sexologist Helmut Kentler, who argued that unruly children could benefit from adult sexual attention. Kentler claimed the boys would fall “head over heels” in love with their new guardians. The two men say that, in fact, they were repeatedly raped by the men they were placed with.

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