Did Rep. Christopher Collins (R-N.Y) commit the federal crime of securities fraud when he spoke to his son, Cameron, on the phone shortly after he found out bad news about an Australian biotechnology company that they both held shares in?
The answer may depend in part on which one of the 12 regional federal appellate circuits hear the appeal of the case. It may depend on which three appellate judges on such a circuit happen to be chosen to hear such an appeal. Even the same three appellate judges may significantly revise their view of the matter, applied to the same facts, over the course of less than a year, so the answer may depend in part on when Collins happens to catch the judges.
Such is the contemporary state of what passes for insider trading “law.” It’s enough to perplex even lawyers and law professors. “‘It’s Complicated’: The Evolving Case Law on How Relationships Impact Insider Trading Liability,” is how two lawyers at the firm Orrick headlined a blog post about the issue. A former federal prosecutor who is now a professor at Brooklyn Law School, Miriam Baer, last year published an article in the Yale Law Journal highlighting what she said was “the extent to which insider trading law falls short of criminal law’s legality principle.”
Baer explained that this “legality principle” includes “two distinct but related concepts. First, criminal prohibitions should be set forth with sufficient clarity to inform citizens in advance of what is prohibited; second, and of more importance in this context, crime creation is reserved solely for the legislature. Judges do not make crimes; legislatures do.”
A timeline of recent developments on this legal front is a reminder of just how complicated, evolving, unclear, and judge-written this area of the law is, writes Ira Stoll.
Michael Drejka, who shot and killed Markeis McGlockton in the parking lot of a Clearwater, Florida, convenience store on July 19, was charged with manslaughter today. The charge means that Bernie McCabe, the state attorney for Pinellas and Pasco counties, did not buy Drejka’s claim that he shot McGlockton because he reasonably believed it was necessary to prevent serious injury or death.
That is the justification required by Florida’s “stand your ground” self-defense law, notwithstanding much confused criticism implying that the state is especially permissive in situations like this. McCabe’s decision makes Pinellas County Sheriff Bob Gualtieri’s failure to arrest Drejka seem all the more puzzling, since it indicates that the prosecutor not only thinks there is probable cause to believe Drejka’s use of lethal force was unjustified (the requirement for an arrest) but also thinks the state can prove that by clear and convincing evidence at a pretrial hearing and beyond a reasonable doubt at trial.
Under Florida law, manslaughter, a second-degree felony punishable by up to 15 years in prison, is an unjustified homicide that does not qualify as murder, which requires premeditation. The charge seems appropriate given what we know about the facts of the case.
Surveillance video shows McGlockton, responding to an argument between his girlfriend and Drejka over her decision to park in a handicapped spot, pushing Drejka to the pavement. Drejka, still sitting on the ground, draws a pistol, prompting McGlockton to back away, at which point Drejka shoots him in the chest. While McGlockton broke the law by assaulting Drejka, Drejka’s response was disproportionate. He acted out of fear (and/or anger) in the heat of the moment, so the killing was not premeditated. But that does not mean it was justified.
Gualtieri conceded that Drejka “probably could have” defended himself by brandishing the gun without firing it. He has also said that he himself would not have fired in that situation. Yet he erroneously insisted that Florida law barred him from arresting Drejka. He has asserted that police are not supposed to second-guess the subjective judgment of people who use lethal force, which is wrong, and that police are not supposed to make an arrest unless it is “absolutely clear” that a shooting was illegal, which is also wrong.
Journalists, many of whom were already biased against Florida’s self-defense law, followed Gualtieri’s lead. The Tampa Bay Times, for instance, claims Drejka “avoided arrest…because of the controversial self-defense law that eliminated one’s duty to retreat before resorting to force.” Yet nothing in the law prevents police from arresting someone when they have probable cause to believe he killed someone without justification.
“It’s implausible,” David Harsanyi recently wrote in this space, “to imagine a future in which liberal activists don’t demand that Republican groups be de-platformed.” Conservative activists, too, will happily whip out the ban-hammer, in the name either of fair play or righteous indignation/responding to market signals. So where does that leave libertarians?
Arguing amongst themselves, as usual. At least that was the case in today’s editor-roundtable version of the Reason Podcast, featuring Katherine Mangu-Ward, Peter Suderman, Nick Gillespie, and Matt Welch. Starting with the dud of a Unite the Right II rally, then proceeding to Antifa and Alex Jones, the quartet grapples with free-speech culture vs. law, the illiberal honkings of pols such as Sen. Chris Murphy (D–Conn.) and President Donald Trump, and the ongoing self-martyrdom of professional journalists. Along the way (spoiler alert!) we learn of Mangu-Ward’s counter-protest infiltration, and the Silicon ValleyPowerPoint presentation that knits together weed, Satanism, and cryptocurrency.
Disney’s forthcoming film The Jungle Cruise will include a prominent gay character, a first for the company. Sounds like a progressive milestone, right? Not according to the intersectional left: Jack Whitehall, the actor cast in the role, is straight—and, gasp, white—which is very problematic.
The CW fared little better in casting Ruby Rose to portray Kate Kane in its upcoming Batwoman show. The character is a Jewish lesbian; Rose is gender fluid and part of the LGBT community, but not Jewish, which isn’t good enough for those who think the actor must check off all the same boxes as the character. Rose was attacked on social media and quit Twitter over the weekend.
Not only does ruby rose not identify as a lesbian but she’s not Jewish either. So…they basically lied about it wanting an actor that represented the diversity to stay true to who batwoman is and instead just picked a “hot” white person that isn’t too gay to offend the straights
Both these incidents follow Scarlett Johansson’s decision to quit Rub & Tug, in which the cis white actress had been slated to play a trans man. Eviscerated for taking a role that should have gone to a trans person, Johansson finally backed out of the film—a decision that GLADD hailed as a “game changer” for the trans community, even though the actress’s departure means the movie might not even get made.
This feels a little like the debate over cultural appropriation all over again: many on the left, including and especially the campus left, do not believe that people should engage in rituals, or borrow from other traditions, or cook ethnic food, or wear ethnic clothing, unless they were born a member of that tribe. Similarly, an actor shouldn’t portray a marginalized person unless they were oppressed in exactly the same way as the character.
But controversies over Rose, Whitehall, and Johansson also reflect the growing influence of “intersectionality,” a popular lefty academic theory that came into existence in the late 1980s, and generally makes several claims: various forms of oppression—sexism, racism, anti-gay animus, economic inequality—are both distinct and interrelated; they “stack”; the sole authority on a person’s oppression is that person. Thus, in intersectional thinking, we cannot and should not turn to Ruby Rose to tell the story of a Jewish lesbian, even if she’s an excellent and hardworking actress who endured some of the same struggles that the character did.
Obviously, it’s important to listen to the marginalized, and intersectionality has value to the extent it encourages us to open our eyes to other people’s lived experiences—to listen and learn from each other. Acting, though, quite literally demands imitation: informed and respectful imitation, we hope, but imitation nonetheless. As we become more aware of the various kind of oppression that are out there—and adherents of intersectionality are always adding more of them; able-ism and size-ism are on the rise—it’s going to be more and more difficult to tell complicated stories if we demand that the people involved are perfect intersectional matches. The likely demise of Rub & Tug (the film is in “limbo,” but things don’t look good, according to The Wrap) serves as a useful example.
I’m thus quite skeptical we should aspire to build a world where these cultural boundaries are more rigid—where the perfect is the avowed enemy of the good. I’ll throw one more recent example of supposedly insensitive casting at you: there is a person who’s furious about the rumor that James Bond, who has always been played by white actors and was written as white in the source material, will be played by Idris Elba, a black man, in future film installments.
“A Black James Bond would be an act of dispossession far greater than a flotilla of a million refugees,” wrote this person on Twitter. “Refugees are, after all, refugees. James Bond is a symbol of British identity—indeed, the British empire—and of European masculinity writ large.”
This person, of course, is alt-right leader Richard Spencer.
Los Angeles’ new police chief is a $1.27 million beneficiary of a controversial city “retirement” program that is so costly and prone to abuse that other cities which tried it have since abandoned it.
Michael Moore, a 36-year department veteran who had been managing operations as assistant chief, was named in June to replace retiring Chief Charlie Beck.
But before that announcement, Moore had enrolled in a program called the Deferred Retirement Option Plan (DROP). DROP is a program that allows Los Angeles public safety employees to draw pension earnings without actually retiring. To do so, employees have to be at least 50 years old and commit to retiring within five years. Those pension payments go into a special account that they receive as a special lump sum when they retire. So in short: They get paid their salaries as usual during those five years of work. Then when they retire, they also get the five years of pension payments they would have received had they been retired for the five years they continued to work. For Moore, whose retirement lasted all of 30 days, that lump sum was $1.27 million.
The stated goal of the DROP program is to serve as an incentive for veterans to remain for a few more years to help pass their wisdom along to the younger folks. But what really happens is thoroughly predictable: Employees attempt to game the system with frequent medical leaves. A previous Los Angeles Times investigation found that the city had shelled out more than $220 million over nine years to people in the DROP program who had taken medical and disability leaves during these final five years. So they’re earning both their salaries and their pensions and not working. Then when the retirement actually comes, they walk away with a big, fat bonus check. Los Angeles has spent more than $1.6 billion in extra pension payments since the program began in 2001.
Moore is not accused of bilking the program in any way. But there is some very curious timing going on here, based on what the Los Angeles Timeswas able to track down. Moore actually did retire in January, when his five-year stint in the DROP program ended. That’s required for you to get that payday. But he only “retired” for 30 days, took a road trip, visited his daughter, went skiing, and then returned to the job in March, and resumed earning $299,000 a year. Oh, and since he “retired,” he is also bringing home a $240,000 annual pension.
This is permitted, the Los Angeles Times notes, but is extremely rare. It’s only happened five other times since 2008. It is allowed when an employee’s work is so specialized they may not be replaceable. But apparently even though the city had years to recruit a replacement for Moore and even though the very point of the DROP program was for Moore to train a replacement, they did not find the right person. Then at around the same time Moore “retired” in January, Beck announced that he was going to retire as well.
Why does the timing for all this matter? The chief of police is not eligible to participate in the DROP program. If Moore had been promoted up to the chief position before he had retired, he would have needed to agree to give up the $1.27 million that had been set aside. So the big question—one that may prove unanswerable—is whether Moore retired and came back specifically so that he could get that extra money before getting promoted to chief.
The Times says it was Beck who had approached Moore and asked him to stay on, months before Beck announced his own retirement. And Moore says he was blindsided himself when Beck decided to step down. Everybody wants to insist that the timing here is all a coincidence.
Ultimately, $1.27 million is a drop in the bucket of the city’s spending. Los Angeles will contribute $1.2 billion to its city employee pension funds this year, about 20 percent of its budget. It’s nevertheless an example of how unwilling the city leadership is to address or even recognize the financial problems caused by overly generous benefits for city employees. Garcetti still supports the DROP program even after the Times exposed the problems with it and even after the former mayor who helped introduce it, Richard Riordan, turned against it.
A Baltimore police officer who was caught on camera repeatedly punching a pedestrian who dared to question his authority resigned yesterday after his department suspended him and launched an investigation. The swift response to the ugly incident, which happened around noon on Saturday, shows once again the importance of ubiquitous cameras in revealing and deterring police brutality, which may be partly a function of race but is fundamentally a problem of unconstrained power. That truth is especially apparent in this case, where both the abusive officer and his victim are black.
The Baltimore Police Department has not named the officer who resigned or the man he assaulted. But Warren Brown, an attorney who represents Dashawn McGrier, the man who was beaten, identified the officer as Arthur Williams, who joined the department last year. Brown said the encounter on Saturday, which was recorded by more than one bystander, was McGrier’s second run-in with Williams, who last June arrested him for assaulting an officer, disorderly conduct, obstructing and hindering, and resisting arrest. All of those are highly malleable charges that look even more questionable in light of what happened on Saturday.
According to Brown, McGrier was sitting on the steps of a building when Williams passed by in his patrol car. Moments later, as McGrier was walking down the street, Williams approached him on foot and ordered him to stop. McGrier wanted to know why he was being stopped, but Williams would not say. “I’m sitting on the steps,” McGrier says in one video. “For what?” Williams pushes him, and McGrier says, “Don’t touch me!” Williams responds by punching McGrier more than a dozen times and tackling him. McGrier does not fight back. As he lies on the sidewalk under Williams, blood flows from his mouth. “I got all that,” says the man who is recording the attack. “Don’t worry.”
Interim Police Commissioner Gary Tuggle said he was “deeply disturbed” by the videos and had launched an investigation of Williams and the officer who was with him, which will include a review of “body camera footage.” The second officer, who like Williams was suspended with pay, did not participate in the assault but did not intervene either. Mayor Catherine Pugh described the incident as “disturbing” and said she had “demanded answers and accountability.” She added that “we are working day and night to bring about a new era of community-based, constitutional policing and will not be deterred by this or any other instance that threatens our efforts to re-establish the trust of all citizens in the Baltimore Police Department.”
Even Lt. Gene Ryan, president of the local police union, said Tuggle took “the appropriate action” in suspending Williams pending an investigation. “I’d like to believe that there is more to it, but obviously, it really makes us look bad,” Ryan toldThe Baltimore Sun. “That’s something we don’t need right now. We don’t need another black eye.”
But for the bystander video, the official response might have been quite different. McGrier, the victim, might have been treated as a criminal instead. Without video evidence to contradict him, Williams could have claimed McGrier resisted arrest for disturbing the peace, or some other combination of easily invented charges.
In its initial description of the incident, the BPD said two officers “working a special cross borders crime initiative…encountered a man, whom one of the officers is familiar with.” According to the BPD, “After the first encounter, officers released him and then approached him again to provide him a citizens contact sheet. When he was asked for his identification, the situation escalated when he refused. The police officer then struck the man several times.”
Ironically, citizen contact sheets are meant to help prevent police abuse by providing a record of street stops. But McGrier seems to have provoked a beating by making it difficult for Williams to fill out this supposedly protective paperwork. The BPD statement mentions no justification for the initial stop, which was supposed to be based on “reasonable suspicion” that McGrier had committed a crime or was about to do so. A demand for identification under threat of arrest likewise is unconstitutional in the absence of reasonable suspicion. But reasonable suspicion, like criminal charges for people whom police deem insufficiently deferential, is easily manufactured.
“I don’t think there was any room for the activity that I saw,” Commissioner Tuggle said at a press conference today. But in practice police have a license to harass people at will, inventing excuses as necessary, unless there is video or eyewitness testimony to contradict them. While young black men like McGrier are especially likely to be the victims of such abuse, the basic problem is loose rules and weak mechanisms for enforcing them.
Some people might fault McGrier for responding defiantly to Williams instead of meekly complying, which probably would have saved him a beating. But people who are not reasonably suspected of criminal activity are under no obligation to provide identification, and McGrier was rightly indignant that police were hassling him for no valid reason. In a free society, no citizen should have to fear police punishment for asserting his rights.
About a year ago, Pew Research asked people around the globe whether they thought life in their country was better or worse than it was 50 years ago.
Look to your right and down to see how Americans stack up. There we are, in a sad little grouping of countries, with just 37 percent of us feeling better about the current day than a time when major political figures were being gunned down in the streets, massive race riots convulsed cities that were already hitting the shitter, about 500,000 men were serving overseas involuntarily, and racism and sexism were overt and acceptable. FFS, in 1968, George Wallace won five states and 14 percent of the popular vote on a segregationist platform in a year that saw MLK and RFK get shot and riots erupt everywhere (including the Democratic National Convention in Chicago, the streets of Paris’s Left Bank, and the Olympic Games in Mexico City)!
At Reason, we tend to believe that things are always getting better. Not that all things are always getting better all the time, but as a country and a planet, we’re generally moving in the right direction. There’s a heap of trouble in the world, but you look back a half-century and the things that immediately pop out are the end of Soviet Union and the last vestiges of 19th-century colonialism, the shrinking of the number of people living in what the United Nations considers extreme poverty, the relative lack of major shooting wars, the rise of global trade and movement of people, and the rise to near-equality of women.
As it happens, Reason is celebrating its 50th anniversary this year, in Los Angeles on Saturday, November 3. This is a time where we are calling in all the ships at sea to have a blowout, day-long, day-glo celebration of what’s gotten better during the last half-century. After cranking out issue after issue since 1968, developing Reason.com into the largest source of news, politics, culture, and ideas from a libertarian perspective, and building out Reason TV to be the premier libertarian video and podcast platform online, we’re going to a day off to mix with our tribe of gentle, lovely, beautiful, fun freak-flag-flyers. Please join us!
The day’s events include a morning of panels and conversations packed with past, present, and future Reason luminaries, including Robert W. Poole, Virginia Postrel, Adrian Moore, Nick Gillespie, Matt Welch, Katherine Mangu-Ward, and more; lunch with broadcasting legend John Stossel; and a gala dinner hosted by Fox Business star Kennedy and featuring former Indiana Gov. Mitch Daniels and Nobel Prize-winning economist Vernon Smith.
And the program is still being hashed out, with plenty of very great surprises yet to drop.
Go here for ticket prices and sponsorship opportunities (the latter includes an invite to a special Friday night dinner at L.A.’s incredible Bavel). Prices increase after September 15, so it pays to book early if you’re coming from out of town. The day’s events are at the Ritz-Carlton, but there are plenty of other hotels in the area, too.
The only thing that will make this great day better is your presence! Thanks for the support you’ve shown to Reason in our first 50 years. We can only say with cautious confidence that the next 50 years are really going to be awesome.
A scathing Monday column in Politico has revealed that yet another member of President Trump’s administration benefitted from chain migration, something the president once called “NOT ACCEPTABLE!”
As Reasonpreviously reported, First Lady Melania Trump’s parents became U.S. citizens last week by using the first lady as a sponsor. The family-based path to citizenship, often referred to as “chain migration,” is the most common form of immigration and relies on a green card holder or a legal U.S. resident to sponsor a foreign family member. Prior to the first lady’s use of the procedure for her parents, the president suggested limiting its use to spouses and minor children. Among his many criticisms of the practice, Trump once asserted that chain migration “cannot be allowed to be part of any legislation on Immigration.”
According to David S. Glosser, uncle of White House policy adviser Stephen Miller, Miller’s family also benefitted from chain migration. On Monday, Glosser wrote in Politico that Miller’s maternal great-grandfather, Sam Glosser, became a U.S. citizen after various ancestors sent enough money to Eastern Europe to pay off debts and sponsor the passage of immediate family members to America. Glosser criticized his nephew, “who is an educated man and well aware of his heritage,” for becoming “the architect of immigration policies that repudiate the very foundation of our family’s life in this country.” He argued that had Miller’s immigration policies been enacted in the 20th century, the family may have become victims of “violent anti-Jewish pogroms and forced childhood conscription in the Czar’s army.”
Similar to Trump, Miller has backed legislation that would end chain migration. When the merit-based Reforming American Immigration for Strong Employment (RAISE) Act was introduced by congressional Republicans in August 2017, Miller explained to the White House pool reporters that the bill sought to eliminate “so-called chain migration.” Like Trump, he said that the bill would limit family-based migration to “spouses and minor children.”
When asked about his ideal number of immigrants to the U.S., Miller told Fox News’ Tucker Carlson in January, “I have my own views on it, but I think the important point is ending chain migration, as the president has called for, is necessary not just for economic security but for national security.” He also confirmed that the administration was not merely looking to limit chain migration, but to eliminate it in favor of merit-based immigration.
An Illinois judge ruled last Thursday that the city of Chicago does not have to reveal the details of its bid to become the site of Amazon’s massive new headquarters, shielding the city’s offer of huge tax breaks and other handouts from public view.
Lucy Parsons Lab, a digital rights and transparency advocacy group, filed a public records lawsuit against Chicago in February after the city refused to disclose its bid, citing a competitive advantage exemption. Since the corporate giant announced in 2017 that it was seeking a site to build a second headquarters, nicknamed HQ2, major cities across the U.S. have been vying for Amazon’s favor, often dangling billions in tax breaks and other incentives to the company.
But the exact details of those offers have often been hidden from the public. Chicago is only one of 30 cities that has refused to disclose its HQ2 bid, according to a public records project by MuckRock.
Chicago reportedly offered Amazon $1.32 billion in “Economic Development for a Growing Economy” tax credits. Lucy Parsons Lab was seeking the city’s bid as well as communications between Chicago Mayor Rahm Emanuel. However, a Cook County circuit judge rejected the group’s effort to pry loose those records.
“The City of Chicago could suffer greatly by this very disappointing ruling,” says Freddy Martinez, director of Lucy Parsons Lab. “We raised this lawsuit to bring transparency to a very critical issue in our city and are outraged that we lost. This raises the potential for a very serious loophole where the city can offer private companies massive tax breaks in secret with virtually no oversight. These tax breaks are being offered to Amazon, one of the richest corporations in the world, which pays no federal tax at all.”
Chicago is “notorious for gaming tax payers and putting them on the hook for decades of awful economic policies,” Martinez continued, pointing to the city’s bizarre deal to lease out its parking meters to Abu Dhabi. “We don’t even know the details of this bid but we expect that taxpayers could end picking up the tab for Jeff Bezos for decades.”
As The New York Timesreported last week, places like Newark, Austin, and Miami-Dade County have all refused to disclose their Amazon HQ2 bids—sometimes even city councils are kept in the dark—or released documents that are almost completely redacted:
A primary reason for the information blackout is that, in many cases, the bids were handled by local private Chamber of Commerce affiliates or economic development groups that aren’t required to make their negotiations public. Many of the groups are also not covered by Freedom of Information Act or state open-records requests.
But another reason is gamesmanship. Some cities say they want their Amazon proposals to remain confidential to avoid showing their hand to rivals. And Amazon required the finalists to sign nondisclosure agreements that forbid the local groups to release proprietary information about the company […]
The few bids that have become public are breathtaking financial packages that indicate just how much states are willing to pony up to woo Amazon. Maryland put together an $8.5 billion tax incentive and infrastructure bid, and local and state officials in New Jersey got legislative approval to offer Amazon $7 billion in tax credits and incentives to pick Newark.
Whoever gets the final rose in this unseemly municipal edition of The Bachelor will likely see a big influx of jobs, construction, and housing demand (50,000 jobs and a $5 billion investment in construction, if you believe Amazon’s numbers), but the public should have the opportunity to see exactly what their officials are putting them on the hook for in exchange for those potential jobs.
As Reason columnist Veronique de Rugy, a senior research fellow at the Mercatus Center, wrote in July, the sort of subsidies that cities are throwing at Amazon do little to enrich anyone besides the recipients of them. Take Maryland’s absolute unit of a bid:
My Mercatus Center colleagues Michael Farren and Anne Philpot did the math: The bid, when added to $2 billion in infrastructure spending also being promised, amounts to 3 percent of Maryland’s anticipated tax revenue over the next 10 years.
That should fill residents and businesses in the state with dread. While there’s no doubt Amazon’s HQ2 would add something to the economy, a broad body of economic research has shown that targeted state subsidies to private businesses—while often promoted as a “market-friendly” means to boost growth, jobs, and development—have little to no net positive effects. And as George Mason University’s Christopher Coyne and Lotta Moberg wrote in a 2014 working paper, such subsidies are in fact often damaging, because they misallocate scarce public resources while encouraging rent seeking, regulatory capture, and cronyism.
Bonus: Watch ReasonTV’s parody video of two desperate small-town mayors vying for Amazon’s sweet, sweet jobs. “Alright, bullet train. You want a bullet train? Because I’ll eminent domain this whole fucking town.”
The organizer’s permit application stated that about 400 attendees would gather outside the White House to commemorate last year’s rally in Charlottesville, Virginia. The estimate was later downgraded to about 200, but by the time the rain started falling on Lafayette Square, it was clear that fewer than 30 were showing up amid a significant presence of cops and counterprotesters. Most of downtown Washington, D.C., was shutdown.
Bands of black clad Antifa members came with shields, helmets, and gas masks, and police surrounded far right protesters to protect them from violence. Most counterprotesters never laid eyes on anyone from the group they came to stand against.
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