The National Injunction Arrives at the Supreme Court

The national injunction has landed again at the Supreme Court, and maybe the third time’s the charm. Nick Bagley and I filed an amicus brief today, with the able assistance of Donald Burke and Zachary Ferguson at Robbins Russell. Which side we take is not a mystery. We wrote together about this subject in the Atlantic, and we each testified earlier this month before the Senate Committee on the Judiciary. But even for those who have been following the debate there may be some new twists. We take up the following questions:

Is the national injunction novel? (Yes.)

Is the national injunction supported by equity’s tradition of group litigation? (No.)

Is the national injunction authorized by the APA? (No.)

Is the national injunction good policy? (No—and though that conclusion will be unsurprising, we also give new arguments and new examples of the chaos caused by the national injunction.)

Finally, was a national preliminary injunction needed in this case? (No.)

If you want to read the brief, it’s here. And, as always, you should read the other side. (I’ll update this post with links to any briefs devoted to the national injunction issue in support of respondents’.)

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How Badly Could the Novel Coronavirus Epidemic Whack the U.S. Economy?

Investors evidently, for the moment, think that the novel coronavirus outbreak is going to hurt the global economy. The S&P 500 stock index is down about 19 percent from its highs a month ago. Only time will tell if those fears are justified, but a couple of economists at the Australian National University use econometric modeling to trace out scenarios to help the public and policymakers better understand how the COVID-19 epidemic could play out over the coming year. Keep firmly in mind that these are scenarios, not predictions.

In these scenarios, the Australian researchers seek to take into account the ferocity of the disease, and how consumers, producers, and governments will react. They try to quantify macroeconomic variables such as the direct costs of the disease, the costs of global supply chain disruption, the effects on labor supply, and how consumer spending will fall as a result of people’s efforts to avoid exposure to infection in public spaces.

Let’s set aside the three scenarios that chiefly focus on the disease’s effect on China, and look specifically at the broad effects on the U.S. economy in their better- and worse-case scenarios. In their better-case scenario (scenario four) the researchers calculate that the overall mortality rate in the U.S. would be 0.07 percent, resulting in the deaths of 236,000 Americans in the first year.

It is important to note that the mortality rate is calculated by dividing the entire population by the number of disease deaths. The case-fatality rate is calculated by dividing the number of infected people by the number of people who died of the disease. To get at what the case-fatality rate implied by these scenarios might be, let’s assume the coronavirus infects people at about the same rate as a 1918 Spanish flu epidemic U.S. infection rate of 28 percent. Today that would mean that 90 million Americans would contract the virus, implying a case-fatality rate of just under 0.3 percent. The seasonal flu case-fatality rate is around 0.1 percent.

In their worse-case U.S. scenario, the Australian researchers calculate that the disease would kill about 1,060,000 Americans in the first year, yielding an overall mortality rate of 0.3 percent. Assuming the Spanish flu attack rate, that implies a case-fatality rate of 1.2 percent. That is just half of the U.S. 2.4 percent case-fatality rate for the 1918 Spanish flu epidemic.

In the better-case scenario, the COVID-19 epidemic would reduce U.S. GDP by 2 percent or about $420 billion. In the worse-case scenario, GDP would drop by more than 8 percent, that is, $1.8 trillion dollars. For comparison, real U.S. GDP fell by 4.3 percent during the Great Recession a decade ago, reducing U.S. GDP by about $650 billion.

In the Australian researchers’ scenarios, the coronavirus outbreak also whacks the stock markets. “Equity markets drop sharply both because of the rise in risk but also because of the expected economic slowdown and the fall in expected profits,” explain the authors. As it happens, today is the eleven-year anniversary of the S&P 500’s Great Recession bottom closing price of 676, down from its 1,565 high closing price on October 9, 2007. That was a 56 percent decline.

The researchers’ scenarios project a fast, V-shaped economic recovery as the epidemic wanes in the next year.

The researchers devised these scenarios as a way to argue that possible big losses stemming from pandemics justify greater investments in public health measures. But how plausible are the scenarios with respect to the way the novel coronavirus epidemic is currently playing out?

Consider that in their best-case scenario for China, the researchers calculated that the epidemic would kill 280,000 Chinese people in the next year and, in the worst case, 12.6 million Chinese people would succumb to the disease. Although the coronavirus is continuing its spread across the globe, the fact that China has reported 3,120 deaths and the rate of infection is dropping suggests that even the Australians’ best-case scenario may prove to be too pessimistic. Let’s hope so.

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Bernie Sanders Cancels Speech on Racial Justice Because He’s a “White Jewish Man”

Ok, some of you may be thinking, “Aha, it’s Purim tonight, and it’s traditional on Purim to engage in satire. You almost got me, Bernstein.” Nope.

Bloomberg News:

At a town hall on “racial and economic justice” in Flint, Michigan, Sanders was scheduled to deliver a prewritten speech… “They talked over the idea and decided it was probably better to let the people of color who were on the panel discuss instead of him giving a traditional speech,” [Sanders spokesman] Casca said in explaining why the speech was scrapped. He added: “He does not have those experiences. He is a white Jewish man.”

In fairness to the Sanders campaign, the speech apparently was not meant to be about racism or racial justice writ large, but a specific appeal to the African-American community. And it’s true that Sanders is white, and therefore hasn’t had the experience of being black. But (a) I’m not sure what adding that he’s Jewish accomplished, beyond that the campaign seems determined to highlight his Jewish identity this time around to obscure the fact that he has surrounded himself with antisemites. It also results in perplexing headlines such as, Sanders Campaign Says Status as ‘White Jewish Man’ Disqualifies From Giving Racial Justice Speech, as if Jews have never been victims of racism; and (b) You would think that if he wants the votes of African Americans, refusing to directly appeal to them on the grounds that he’s white is a combination of silly, counter-productive, and overly-politically correct–especially given that Sanders, to his credit, was a civil rights activist back in the early 1960s.

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Bernie Sanders Cancels Speech on Racial Justice Because He’s a “White Jewish Man”

Ok, some of you may be thinking, “Aha, it’s Purim tonight, and it’s traditional on Purim to engage in satire. You almost got me, Bernstein.” Nope.

Bloomberg News:

At a town hall on “racial and economic justice” in Flint, Michigan, Sanders was scheduled to deliver a prewritten speech… “They talked over the idea and decided it was probably better to let the people of color who were on the panel discuss instead of him giving a traditional speech,” [Sanders spokesman] Casca said in explaining why the speech was scrapped. He added: “He does not have those experiences. He is a white Jewish man.”

In fairness to the Sanders campaign, the speech apparently was not meant to be about racism or racial justice writ large, but a specific appeal to the African-American community. And it’s true that Sanders is white, and therefore hasn’t had the experience of being black. But (a) I’m not sure what adding that he’s Jewish accomplished, beyond that the campaign seems determined to highlight his Jewish identity this time around to obscure the fact that he has surrounded himself with antisemites. It also results in perplexing headlines such as, Sanders Campaign Says Status as ‘White Jewish Man’ Disqualifies From Giving Racial Justice Speech, as if Jews have never been victims of racism; and (b) You would think that if he wants the votes of African Americans, refusing to directly appeal to them on the grounds that he’s white is a combination of silly, counter-productive, and overly-politically correct–especially given that Sanders, to his credit, was a civil rights activist back in the early 1960s.

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Coranavirus Shock: Just Another Panic Monday?

As cases exponentially spread, financial markets swoon, and various institutions shut down (despite the president’s insistence today that “Nothing is shut down”), Reason Roundtable podcasters Peter Suderman, Katherine Mangu-Ward, Nick Gillespie, and Matt Welch give a progress report on their own levels of PANIC and DOOM from inside the infectious zones known as New York City and the District of Columbia. Regular listeners will not be surprised to learn that there are vigorous levels of disagreement.

Also under discussion: the eternal return of Joe Biden, the looming knockout blow to the democratic socialist presidential candidate (if not quite to his policies), the problem of using statistics in conversation, and the dark right-wing past of the inventors of the Boysenberry.

Audio production by Ian Keyser and Regan Taylor.

Music credit: ‘Assembling’ by Asher Fulero

Relevant links from the show:

CPAC Attendees Mocked Coronavirus Fears. Now Some Are Self-Quarantining,” by Elizabeth Nolan Brown

Trump Says the COVID-19 Death Rate Will Be ‘A Fraction of 1 Percent.’ Is He Right?” by Ronald Bailey

To Avoid Charges of Price Gouging, eBay Bans Sale of Coronavirus Supplies,” by Billy Binion

No, Stimulus Spending Wouldn’t Be an Economic Vaccine Against the Coronavirus,” by Eric Boehm

Did the Trump Administration Overpromise 1 Million COVID-19 Diagnostic Tests by the End of This Week?” by Ronald Bailey

Coronavirus Will Be Deadly To Your Liberty,” by J.D. Tuccille

Joe Biden Is No Moderate,” by Peter Suderman

Sexism Didn’t Kill the Warren Campaign. The Warren Campaign Killed the Warren Campaign,” by Katie Herzog

Elizabeth Warren Drops Out. Her Failed Campaign Is a Reminder That Even Democratic Voters Don’t Want a Woke Policy Wonk in the White House,” by Peter Suderman

DNC Changes Debate Qualifications, Excluding Tulsi Gabbard,” by Christian Britschgi

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Coranavirus Shock: Just Another Panic Monday?

As cases exponentially spread, financial markets swoon, and various institutions shut down (despite the president’s insistence today that “Nothing is shut down”), Reason Roundtable podcasters Peter Suderman, Katherine Mangu-Ward, Nick Gillespie, and Matt Welch give a progress report on their own levels of PANIC and DOOM from inside the infectious zones known as New York City and the District of Columbia. Regular listeners will not be surprised to learn that there are vigorous levels of disagreement.

Also under discussion: the eternal return of Joe Biden, the looming knockout blow to the democratic socialist presidential candidate (if not quite to his policies), the problem of using statistics in conversation, and the dark right-wing past of the inventors of the Boysenberry.

Audio production by Ian Keyser and Regan Taylor.

Music credit: ‘Assembling’ by Asher Fulero

Relevant links from the show:

CPAC Attendees Mocked Coronavirus Fears. Now Some Are Self-Quarantining,” by Elizabeth Nolan Brown

Trump Says the COVID-19 Death Rate Will Be ‘A Fraction of 1 Percent.’ Is He Right?” by Ronald Bailey

To Avoid Charges of Price Gouging, eBay Bans Sale of Coronavirus Supplies,” by Billy Binion

No, Stimulus Spending Wouldn’t Be an Economic Vaccine Against the Coronavirus,” by Eric Boehm

Did the Trump Administration Overpromise 1 Million COVID-19 Diagnostic Tests by the End of This Week?” by Ronald Bailey

Coronavirus Will Be Deadly To Your Liberty,” by J.D. Tuccille

Joe Biden Is No Moderate,” by Peter Suderman

Sexism Didn’t Kill the Warren Campaign. The Warren Campaign Killed the Warren Campaign,” by Katie Herzog

Elizabeth Warren Drops Out. Her Failed Campaign Is a Reminder That Even Democratic Voters Don’t Want a Woke Policy Wonk in the White House,” by Peter Suderman

DNC Changes Debate Qualifications, Excluding Tulsi Gabbard,” by Christian Britschgi

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California Wants To Carve Out Religious Exemptions to Its Insane Housing Laws

California’s housing crisis has gotten so bad that state lawmakers are considering a little divine preemption.

Last Friday, state Sen. Scott Wiener (D–San Francisco) introduced Senate Bill (S.B.) 899, which would allow religious institutions—as well as nonprofit hospitals, rehabilitation centers, and nursing homes—to build affordable housing “by right” on land they own.

That means that local planners wouldn’t have the discretion to deny these housing projects, and third parties would lose the ability to hold them up with interminable environmental appeals and lawsuits.

“Churches and other religious and charitable institutions often have land to spare, and they should be able to use that land to build affordable housing and thus further their mission,” said Wiener in a press release. “SB 899 ensures that affordable housing can be built and removes local zoning and approval obstacles in order to do so.”

Wiener’s bill would let qualifying nonprofit institutions build housing projects containing at least 40 units on their own land. If that land is located in an area already zoned for commercial or residential use, these nonprofits could build up to 150 units.

Any organizations that take advantage of SB 899 would have to guarantee that the new housing they produce is 100 percent affordable (meaning it’s offered at below-market rates to low-income people). That affordability requirement would expire after 45 years for for-sale housing, and after 55 years for rental housing.

S.B. 899 comes on the heels of another piece of legislation—Assembly Bill (A.B.) 1851, sponsored by Assemblymember Buffy Wicks (D–Oakland)—which would eliminate parking requirements for housing projects being built on church land.

As Wiener notes, churches often have spare land in prime locations that would make excellent sites for new housing. Many are also already involved in providing temporary shelter to the homeless. But thanks to zoning restrictions, parking requirements, and lengthy approval processes, many religious institutions are kept out of the housing development business.

One prominent example is the Clairemont Lutheran Church in San Diego, which has been trying to include an affordable housing component to the redevelopment of a dilapidated fellowship hall on its property since 2015. Their plans required building over existing spaces in the church’s underutilized parking lot, and that ran afoul of a city code that ties parking requirements for churches to the square inches of pew space that they have.

“Two weeks of the year that parking lot is utilized to the full extent. 50 weeks of the year it’s not,” says Eddie McCoven, a spokesperson for the Clairemont Lutheran Church.

Thanks to lobbying by Clairemont and other faith-based nonprofits, the San Diego City Council voted in December 2019 to scrap the pew-space-to-parking-space formula and reduce church parking minimums overall.

These local efforts are now being mirrored at the state level with the legislation being introduced by Wiener and Wicks.

McCoven says his church is still in the development process, and he predicts that breaking ground for the housing component of their project is still a couple of years away. The plan, he says, is eventually to build somewhere between a dozen and 20 new affordable units.

McCoven says bills such as S.B. 899 and A.B. 1851 will help other congregations interested in developing affordable housing to spend less time and money on the planning process, and more on actually building homes.

“If this type of legislation was already in place when we were starting this project, we would be a lot further along than we are,” he tells Reason. “Any congregation that decides this is something they want to pursue, would probably make it a whole lot easier and a much more streamlined.”

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California Wants To Carve Out Religious Exemptions to Its Insane Housing Laws

California’s housing crisis has gotten so bad that state lawmakers are considering a little divine preemption.

Last Friday, state Sen. Scott Wiener (D–San Francisco) introduced Senate Bill (S.B.) 899, which would allow religious institutions—as well as nonprofit hospitals, rehabilitation centers, and nursing homes—to build affordable housing “by right” on land they own.

That means that local planners wouldn’t have the discretion to deny these housing projects, and third parties would lose the ability to hold them up with interminable environmental appeals and lawsuits.

“Churches and other religious and charitable institutions often have land to spare, and they should be able to use that land to build affordable housing and thus further their mission,” said Wiener in a press release. “SB 899 ensures that affordable housing can be built and removes local zoning and approval obstacles in order to do so.”

Wiener’s bill would let qualifying nonprofit institutions build housing projects containing at least 40 units on their own land. If that land is located in an area already zoned for commercial or residential use, these nonprofits could build up to 150 units.

Any organizations that take advantage of SB 899 would have to guarantee that the new housing they produce is 100 percent affordable (meaning it’s offered at below-market rates to low-income people). That affordability requirement would expire after 45 years for for-sale housing, and after 55 years for rental housing.

S.B. 899 comes on the heels of another piece of legislation—Assembly Bill (A.B.) 1851, sponsored by Assemblymember Buffy Wicks (D–Oakland)—which would eliminate parking requirements for housing projects being built on church land.

As Wiener notes, churches often have spare land in prime locations that would make excellent sites for new housing. Many are also already involved in providing temporary shelter to the homeless. But thanks to zoning restrictions, parking requirements, and lengthy approval processes, many religious institutions are kept out of the housing development business.

One prominent example is the Clairemont Lutheran Church in San Diego, which has been trying to include an affordable housing component to the redevelopment of a dilapidated fellowship hall on its property since 2015. Their plans required building over existing spaces in the church’s underutilized parking lot, and that ran afoul of a city code that ties parking requirements for churches to the square inches of pew space that they have.

“Two weeks of the year that parking lot is utilized to the full extent. 50 weeks of the year it’s not,” says Eddie McCoven, a spokesperson for the Clairemont Lutheran Church.

Thanks to lobbying by Clairemont and other faith-based nonprofits, the San Diego City Council voted in December 2019 to scrap the pew-space-to-parking-space formula and reduce church parking minimums overall.

These local efforts are now being mirrored at the state level with the legislation being introduced by Wiener and Wicks.

McCoven says his church is still in the development process, and he predicts that breaking ground for the housing component of their project is still a couple of years away. The plan, he says, is eventually to build somewhere between a dozen and 20 new affordable units.

McCoven says bills such as S.B. 899 and A.B. 1851 will help other congregations interested in developing affordable housing to spend less time and money on the planning process, and more on actually building homes.

“If this type of legislation was already in place when we were starting this project, we would be a lot further along than we are,” he tells Reason. “Any congregation that decides this is something they want to pursue, would probably make it a whole lot easier and a much more streamlined.”

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Trial Lawyers Are Betting Big on Biden

A Joe Biden presidency would be a bonanza for plaintiff’s lawyers.

After his strong performance in the South Carolina Democratic primary and on Super Tuesday, Biden has been consolidating support among a wide range of key Democratic constituencies. But the trial lawyers have been backing him since before it became trendy.

Four Biden fundraising events tell the story.

On May 21, 2019, Biden had a fundraiser at a home of Orlando, Fla., lawyer John Morgan. Orlando magazine reported the event raised $1.7 million and reports that Morgan owns, with his wife, the plaintiff’s law firm Morgan & Morgan, and also “ClassAction.com; Abogados.com (the Spanish word for attorney is abogado); and Litify, a software management system for law firms.”

On June 18, 2019, Biden held a fundraiser at what a pool report described as “a tent on a balcony-like outside area adjacent to the law offices of Weitz and Luxenberg P.C. in Manhattan.”

My review of Federal Election Commission records discloses about 50 contributions to the Biden presidential campaign from Weitz & Luxenberg employees, totaling $97,400. Most of the contributions are from lawyers, but an accountant and the firm’s information technology director also kicked in. Many of the contributions are grouped around the date of the June 18 event.

Weitz & Luxenberg specializes in asbestos lawsuits. The firm paid former New York State assembly speaker Sheldon Silver millions of dollars to refer cases to it in a scheme that yielded federal criminal charges and a conviction of Silver that was eventually overturned by an appeals court. Weitz & Luxenberg was not charged in the case. The firm’s website boasts that the firm’s lawyers have obtained $8.5 billion in asbestos verdicts; they are also pursuing artificial hip-makers and Monsanto’s Roundup herbicide.

On Monday, December 2, 2019, Biden had another fundraiser with trial lawyers, this time about 70 of them at the Union League Club in Chicago. Among the hosts, according to a pool report, was lawyer John Simmons. Lawyers at his firm, Simmons Hanly Conroy, have donated $119,100 to Biden’s presidential campaign, according to Federal Election Commission records. That firm, too, specializes in asbestos litigation.

On February 24, 2020, Biden had a fundraiser at the Mount Pleasant, S.C., home of Lisa and Joe Rice. Joe Rice is a co-founder of the plaintiff’s law firm Motley Rice.

My review of Federal Election Commission records discloses about 30 contributions to the Biden presidential campaign from Motley Rice employees, totaling $59,850. Most of the donations are from lawyers, though a paralegal and a “law intern” also gave money to Biden. Motley Rice also is involved in Roundup litigation, as well as in cases about breast implants, hernia mesh, Takata airbags, Johnson & Johnson’s baby power, and prescription opioids.

OpenSecrets.org, a website that tracks campaign finance, lists the two plaintiff’s firms, Morgan & Morgan and Simmons Hanly Conroy, as Biden’s top two contributors for the period 1989 to 2020.

Biden’s relationship with the tort bar goes back decades. The Los Angeles Times reported in 2008 that Simmons Hanley Conroy, then known as SimmonsCooper, offered to invest $2 million to help Biden’s son Hunter and Biden’s brother James buy a hedge fund company.

Joe Biden, a lawyer himself, long served on the Senate Judiciary Committee, where he was in a position to craft legislation and to vote on judicial nominations that affected the profits of these law firms.

Presidential candidate Biden professes to be for “a constitutional amendment to entirely eliminate private dollars from our federal elections,” to “reduce the corrupting influence of money in politics.” I disagree with Biden’s stated position. I favor protecting the rights of trial lawyers—just like corporate lawyers and executives and any other American—to participate in the political process by making campaign contributions.

Voters considering Biden, though, will want to be clear-eyed about what all this means. What the trial-lawyer donors understand is that a President Biden would nominate judges who are favorably disposed, or at least not hostile. Biden would also pursue a policy and legislative agenda favorable to plaintiff-lawyer interests.

What might that look like?

There’s a contrarian conservative or libertarian case for privatizing some policy decisions into product liability law. Rather than officially banning guns or ammunition, this line of thought goes, make the manufacturers liable for civil damages in school shootings and other violent crimes. Rather than outright banning fossil fuels, make the oil companies or the automakers liable for the climate consequences of emissions. The trial lawyers and the courts will take care of the rest.

I’m not advocating this line of thought, just describing it. And venturing this prediction: if Biden does wind up in the White House, various other parts of the private economy may suffer in a variety of ways, but it sure will be good for the legal business.

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Trial Lawyers Are Betting Big on Biden

A Joe Biden presidency would be a bonanza for plaintiff’s lawyers.

After his strong performance in the South Carolina Democratic primary and on Super Tuesday, Biden has been consolidating support among a wide range of key Democratic constituencies. But the trial lawyers have been backing him since before it became trendy.

Four Biden fundraising events tell the story.

On May 21, 2019, Biden had a fundraiser at a home of Orlando, Fla., lawyer John Morgan. Orlando magazine reported the event raised $1.7 million and reports that Morgan owns, with his wife, the plaintiff’s law firm Morgan & Morgan, and also “ClassAction.com; Abogados.com (the Spanish word for attorney is abogado); and Litify, a software management system for law firms.”

On June 18, 2019, Biden held a fundraiser at what a pool report described as “a tent on a balcony-like outside area adjacent to the law offices of Weitz and Luxenberg P.C. in Manhattan.”

My review of Federal Election Commission records discloses about 50 contributions to the Biden presidential campaign from Weitz & Luxenberg employees, totaling $97,400. Most of the contributions are from lawyers, but an accountant and the firm’s information technology director also kicked in. Many of the contributions are grouped around the date of the June 18 event.

Weitz & Luxenberg specializes in asbestos lawsuits. The firm paid former New York State assembly speaker Sheldon Silver millions of dollars to refer cases to it in a scheme that yielded federal criminal charges and a conviction of Silver that was eventually overturned by an appeals court. Weitz & Luxenberg was not charged in the case. The firm’s website boasts that the firm’s lawyers have obtained $8.5 billion in asbestos verdicts; they are also pursuing artificial hip-makers and Monsanto’s Roundup herbicide.

On Monday, December 2, 2019, Biden had another fundraiser with trial lawyers, this time about 70 of them at the Union League Club in Chicago. Among the hosts, according to a pool report, was lawyer John Simmons. Lawyers at his firm, Simmons Hanly Conroy, have donated $119,100 to Biden’s presidential campaign, according to Federal Election Commission records. That firm, too, specializes in asbestos litigation.

On February 24, 2020, Biden had a fundraiser at the Mount Pleasant, S.C., home of Lisa and Joe Rice. Joe Rice is a co-founder of the plaintiff’s law firm Motley Rice.

My review of Federal Election Commission records discloses about 30 contributions to the Biden presidential campaign from Motley Rice employees, totaling $59,850. Most of the donations are from lawyers, though a paralegal and a “law intern” also gave money to Biden. Motley Rice also is involved in Roundup litigation, as well as in cases about breast implants, hernia mesh, Takata airbags, Johnson & Johnson’s baby power, and prescription opioids.

OpenSecrets.org, a website that tracks campaign finance, lists the two plaintiff’s firms, Morgan & Morgan and Simmons Hanly Conroy, as Biden’s top two contributors for the period 1989 to 2020.

Biden’s relationship with the tort bar goes back decades. The Los Angeles Times reported in 2008 that Simmons Hanley Conroy, then known as SimmonsCooper, offered to invest $2 million to help Biden’s son Hunter and Biden’s brother James buy a hedge fund company.

Joe Biden, a lawyer himself, long served on the Senate Judiciary Committee, where he was in a position to craft legislation and to vote on judicial nominations that affected the profits of these law firms.

Presidential candidate Biden professes to be for “a constitutional amendment to entirely eliminate private dollars from our federal elections,” to “reduce the corrupting influence of money in politics.” I disagree with Biden’s stated position. I favor protecting the rights of trial lawyers—just like corporate lawyers and executives and any other American—to participate in the political process by making campaign contributions.

Voters considering Biden, though, will want to be clear-eyed about what all this means. What the trial-lawyer donors understand is that a President Biden would nominate judges who are favorably disposed, or at least not hostile. Biden would also pursue a policy and legislative agenda favorable to plaintiff-lawyer interests.

What might that look like?

There’s a contrarian conservative or libertarian case for privatizing some policy decisions into product liability law. Rather than officially banning guns or ammunition, this line of thought goes, make the manufacturers liable for civil damages in school shootings and other violent crimes. Rather than outright banning fossil fuels, make the oil companies or the automakers liable for the climate consequences of emissions. The trial lawyers and the courts will take care of the rest.

I’m not advocating this line of thought, just describing it. And venturing this prediction: if Biden does wind up in the White House, various other parts of the private economy may suffer in a variety of ways, but it sure will be good for the legal business.

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