Review: The Invisible Man

The original, 1933 version of The Invisible Man was the fourth of Universal’s classic monster movies. (It had been preceded by Dracula, Frankenstein, and The Mummy.) Its star, mostly hidden behind bandages and black sun goggles, was Claude Rains; the director, still hot from helming the wildly successful Frankenstein, was James Whale. But forget all that. A new Invisible Man now moves among us, and he’s much, much scarier.

Some years back, the present-day Universal Pictures decided to unite all of its old monsters in a fake franchise called the Dark Universe. This ill-conceived project was strangled in its dark cradle by a disastrous 2017 remake of The Mummy, starring Tom Cruise. So resounding was this bomb that Uni execs decided to deep-six the Dark Universe concept and just turn its next monster reboot over to people who knew what they were doing. This turned out to be, quite wisely, Blumhouse producer Jason Blum and the Australian writer-director Leigh Whannell, who’d had a long involvement with the Saw and Insidious movies, and, more pertinently, had also scripted and directed an excellent 2018 sci-fi film called Upgrade.

As you’d expect, Whannell’s take on The Invisible Man bears only a glancing resemblance to the long-ago James Whale version. Now the title entity is basically a supporting character in a story focused on his wife—a sort of Bride of Invisible Man, you might say. The wife, Cecilia, is played by Elisabeth Moss, and she’s in every scene, borne along on a storm cloud of paranoia and raging fury. This is not a MeToo movie, exactly—it’s a full-on horror flick—but it’s thoughtful and clever and it resonates with the current ascendancy of female concerns.

Cecilia is a onetime architect who has relinquished her career to attend to the batty demands of her husband Adrian (Oliver Jackson-Cohen), who is ultra-controlling. They live in San Francisco, in an icily modern house with a basement laboratory where Adrian—a wealthy tech entrepreneur—pursues his experiments in the field of optics. After several years of marriage, Cecilia hates Adrian with a deep and unflagging passion, and as the movie opens we see her fleeing their home and being spirited away in a car by her sister, Alice (Harriet Dyer). This is a tense sequence, and it’s punctuated by a really jolting, out-of-nowhere shock. Happily, things get much worse very quickly.

Two weeks later, we find Cecilia sheltering with an old friend named James (Aldis Hodge) and his daughter Sydney (Storm Reid). Then she learns that Adrian has committed suicide, and is informed by his creepy brother, Tom (Michael Dorman), that her late husband has left her $5-million, tax-free, to be dispensed in regular installments. Great. (Later, though, we learn there’s a stipulation that the money spigot will be turned off if Cecilia ever loses her mind.)

Strange things start happening—small-scale at first: Cecilia leaves a frying pan on a burner when she walks out of the kitchen for a minute and we see that something is turning up the flame dangerously high in her absence. In the middle of the night, we see the blanket on the bed where she’s sleeping being slowly pulled down. She hears a phone ringing—up in the attic. Cecilia tells James about these incidents and he tells her to stop acting weird.

The gaslighting continues, and Cecilia soon realizes that Adrian is responsible—he’s somehow still alive. No one else believes this, of course, and the unseen husband proves devilishly clever at isolating her from everyone who might provide support.

I’ll go no further into what transpires, apart from noting that the director’s camera style—showing us widescreen views of spaces where nothing seems to be happening—has the effect of cranking up our anxiety as we wait for something awful to do so. There’s also an excellent score, by Benjamin Wallfisch, which deploys steely, post-Hitchcock strings and what sounds like a host of metal locusts in an enveloping Dolby Atmos aural environment.

Best of all, there are no simpleminded jump scares in this movie—no cheap-thrill boo! effects. There are plenty of scares, and they’ll likely make you jump (two of them are brilliantly horrific), but they arise naturally out of Whannell’s story, which is constructed with a series of ingenious twists that keep coming at you right up to the end. For those who may have been waiting for a horror movie that really works you over, this is it.

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New in the Atlantic: Corpus Linguistics and D.C. v. Heller

In 2018, my colleague James Phillips and I published a post on the Harvard Law Review Blog. We offered some tentative findings about the linguistic claims made by the majority and dissent in D.C. v. Heller. Since then, James was hired as an associate professor at the Chapman University Fowler School of Law. As James transitions to academia, we plan to submit for publication a much more detailed version of our research. In the interim, we published an essay in The Atlantic that previews our work. We show that both Justice Scalia and Justice Stevens erred.

Here is a segment that focuses on the phrase “keep arms”

Next, we turn to Justice Stevens’s dissent. He wrote that the Second Amendment protected a right to have and use firearms only in the context of serving in a state militia. Stevens appears to have determined—though his exact conclusion is somewhat unclear—that the phrase keep and bear arms was a unitary term of art. Such single linguistic units, called binomials or multinomials, are common in legal writing. Think of cease and desist or lock, stock, and barrel. As a result, Stevens concluded, there was no need to consider whether keep arms had a different meaning from bear arms. Therefore, he had no reason to determine whether keep arms, by itself, could refer to an individual right.

Was Stevens’s linguistic intuition correct? No. The phrase keep and bear arms was a novel term. It does not appear anywhere in COEME—more than 1 billion words of British English stretching across three centuries. And prior to 1789, when the Second Amendment was introduced, the phrase was used only twice in COFEA: First in the 1780 Massachusetts Declaration of Rights, and then in a proposal for a constitutional amendment by the Virginia Ratifying Convention. In short, keep and bear arms was not a term of art with a fixed meaning. Indeed, the meaning of this phrase was quite unsettled then, as it had barely been used in other governmental documents. Ultimately, a careful study of the Second Amendment would have to treat keep arms and bear arms as two separate linguistic units, and thus two separate rights.

We performed another search in COFEA, about the meaning of keep arms, looking for documents in which keep and arms (and their variants) appear within six words of each other. The results here were somewhat inconclusive. In about 40 percent of the hits, a person would keep arms for a collective, military purpose; these documents support Justice Stevens’s reading. And roughly 30 percent of the hits reference a person who keeps arms for individual uses; these documents support Justice Scalia’s analysis. The remainder of the hits did not support either reading.

We could not find a dominant usage for what keep arms meant at the founding. Thus, even if Scalia was wrong about the most common meaning of bear arms, he may still have been right about keep arms. Based on our findings, an average citizen of the founding era would likely have understood the phrase keep arms to refer to possessing arms for both military and personal uses.

James and I were also cited in a recent New York Times Magazine profile on originalism.

For originalists, the new tool is “a paradigm-shifting technology,” two members of the Federalist Society, the law professor Josh Blackman and the Stanford law fellow James C. Phillips, wrote in The Harvard Law Review’s blog in August 2018. It also means that cherry-picking the historical record to establish a dubious “original” meaning would be harder to conceal. “We can do empirics,” says Alison LaCroix, a historian and law professor at the University of Chicago. “There’s a data set.”

Blackman and Phillips conducted a review of the database and found that the dominant use of “bear arms” at the time of the country’s founding related to the militia. (Even so, they didn’t conclude that Scalia got Heller wrong.) LaCroix and three linguists submitted a brief to the court last fall, in the New York case, with studies they had each done. One found that references in the database “to hunting or personal self-defense” for the phrase “bear arms” were “not just rare, they are almost nonexistent.” The phrase “keep arms,” the brief stated, was also used “almost exclusively in a military context.”

The findings confirm what Rakove and his fellow historians showed about the era’s political history. But this time, the analysis played by the rules of the game as Scalia defined them, by looking narrowly at the original public meaning of the text. “I don’t care how big a fan of Justice Scalia you are,” Phillips told me. “At some point, you run up against the data.”

(We disagree with some of the quotes from the other professors.)

Our goal here is not simply to beat up on Justice Scalia. Linguistic analysis formed only a small part of Scalia’s originalist opus. And the bulk of that historical analysis, based on the history of the common-law right to own a firearm, is undisturbed by our new findings. But originalists should still be able to assess, critically where Justice Scalia faltered. And Heller critics should likewise acknowledge where Justice Stevens faltered.

Finally, we offer this observation in our essay:

Corpus linguistics, like any tool, is more useful in some cases than in others. The Second Amendment in particular poses distinct problems for data searches, because it has multiple clauses layered in a complicated grammatical structure.

Our ultimate conclusion highlights some of the limits of corpus linguistics, at least with respect to the Second Amendment.


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One Child Nation

New York Times columnist Thomas Friedman, who admires what a single-party autocracy such as China’s can accomplish when it is “led by a reasonably enlightened group of people,” praised that country’s “one child” policy in a 2008 book, saying it “probably saved China from a population calamity.”

In the Amazon Prime Video documentary One Child Nation, the Chinese-American filmmaker Nanfu Wang lays bare the brutal reality of the oppressive regime that was so glibly endorsed by rich Westerners who take their own reproductive freedom for granted. She shows that the one-child policy, in force from 1979 to 2015, routinely relied on extortion, assault, kidnapping, and infanticide.

Returning to the farming village in Jiangxi province where she was born and raised, Wang talks to an uncle and an aunt who mournfully remember the infant daughters they felt compelled to abandon. Wang’s grandfather says he had to dissuade local officials from sterilizing her mother after Wang was born.

One of those village leaders tells Wang “the one-child policy was very difficult to implement” because “people resisted.” If they couldn’t be persuaded by propaganda, they would be punished by confiscation of their possessions or demolition of their homes. Recalcitrant women were physically forced to undergo sterilization. “It was really fucked up,” the former official says. “We below didn’t want to do this, but we had no choice.”

A local midwife estimates that she performed 50,000 to 60,000 sterilizations and abortions. “Many I induced alive and killed,” she says. “My hand trembled doing it.”

A former family planning official recalls that “sometimes pregnant women tried to run away” from forced abortions, often performed at eight or nine months, and “we had to chase after them.” Unlike the midwife, she is proud of her work, agreeing with Thomas Friedman that “the policy was absolutely correct.”

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Brickbat: A Man’s Home Is His Castle

Officials in Suffolk County, New York, are considering two ordinances that would ban residents of apartment buildings, condominiums and other multi-unit residential buildings from smoking in their own homes. Dr. William Spencer, a member of the Suffolk County Legislature, says second-hand smoke can seep through cracks in walls or through plumbing or electrical lines. One of the laws calls for fines of up to $1,000 for those convicted of smoking in their homes.

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Marijuana Federalism: Uncle Sam and Mary Jane

Marijuana possession and distribution is illegal under federal law.  Nonetheless, a majority of states have legalized medical marijuana to some degree, and several more states have legalized marijuana possession and use for even recreational purposes. As a practical matter, this means individuals are able to possess and use marijuana without significant fear of prosecution throughout much of the United States. Yet the federal prohibition still influences business decisions related to marijuana as the specter of federal action remains.

Next month, the Brookings Institution will publish my new book, Marijuana Federalism: Uncle Sam and Mary Jane, an edited volume exploring the implications of the conflict between federal and state marijuana laws, and suggesting how the proper reforms could harness federalism to produce better marijuana policy.

As I explain in the introduction,  even though the Justice Department has not sought to preempt or displace state-level reforms, the federal prohibition casts a long shadow across state-level legalization efforts. This federal-state conflict presents multiple important and challenging policy questions that often get overlooked in policy debates over whether to legalize marijuana for medical or recreational purposes. Yet in a “compound republic” like the United States, this federal-state conflict is particularly important if one wishes to understand marijuana law and policy today.

The book’s introduction, “Our Federalism on Drugs,” is available on SSRN. The book itself may be ordered through Amazon.

Here’s a listing of the other chapters:

1. Public Opinion and America’s Experimentation with Cannabis Reform – John Hudak and Christine Stenglein

2. The Effect of State Marijuana Legalizations: An Update – Angela Dills, Sietse Goffard, and Jeffrey Miron

3. The Smoke Next Time: Nullification, Commandeering, and the Future of Marijuana Regulation – Ernest A. Young

4. Murphy’s Mistake, and How to Fix It – Robert A. Mikos

5. Federal Nonenforcement: A Dubious Precedent – Zachary S. Price

6. Banks and the Marijuana Industry – Julie Andersen Hill

7. Legal Advice for Marijuana Business Entities – Cassandra Burke Robertson

8. The Contingent Federal Power to Regulate Marijuana – William Baude


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A New Book Reveals Facebook’s Problems Started Way Before the 2016 Election

“It remains uncertain whether anything that happened on Facebook made a significant difference in the 2016 election,” Steven Levy writes in his introduction to Facebook: The Inside Story. This is a sentence the reader has to keep in mind throughout Levy’s new book, which documents how the seeds of what has gone wrong for the company were planted years before 2016 in a series of heedless or needlessly aggressive decisions that are deeply rooted in the history and culture of the company itself. 

When it comes to what we actually can prove about the 2016 votes in the United Kingdom (which resulted in Brexit) and in the United States (which gave us President Donald Trump), it’s never been demonstrated that Facebook and its ad policies made any difference. Even so, it’s now indisputable that various political actors (including Russia) have tried to use Facebook that way, and that the company made it easy for them to try. 

Levy’s introductory chapter is designed to show both the reputational heights Facebook founder Mark Zuckerberg and his company briefly reached and the depths to which they’ve both now fallen. The author draws a brisk line between Zuckerberg’s triumphant surprise visit to Lagos, Nigeria, in August 2016—where he meets a range of programmers and would-be startup entrepreneurs as well as top government officials—and the unexpected outcome of the American election in November that year. The latter inspired a gathering storm of critics to point directly at Facebook as the source of that outcome’s unexpectedness. 

This juxtaposition works to draw readers into the thematic heart of the book but also suggests, a bit misleadingly, that Facebook’s massive loss of public regard starting in 2016 was an abrupt, unexpected one. But what the author documents in his introductory chapter and throughout the book is that Facebook’s unforced errors have amounted to a car crash more of the slow-motion variety; you can’t look away, but also it never seems to end.

Nothing in Levy’s narrative arc for Facebook and its principal founder will come as a surprise to anyone who has followed the company’s fortunes over the 15 years. You could fill a specialty bookstore with nothing but Facebook-related books published in the last decade or so, starting with Ben Mezrich’s The Accidental Billionaires, later adapted by Aaron Sorkin for the David Fincher-directed movie The Social Network. Mezrich’s book, and almost all of the books published about Facebook since then, fall into two broad categories: (1) Look At The Great Things These Geniuses Have Done, or (2) Look At All The Pathological Things These Twisted Guys Have Done. With the exception of David Kirkpatrick’s The Facebook Effect (a book on the company’s early years that Levy credits by name in his acknowledgments), the authors of most of these other books typically have tried to distill the story of Facebook into lessons—either what not to do or what must be done—regarding social media and big tech-company successes. One way or another, they’ve almost all had axes to grind.

That was never going to be the kind of story Levy—whose 2011 book on Google, In The Plex, is the best journalistic account of that company’s history and its impact on the tech world—would write about Facebook. Levy’s books and his admirably accessible body of tech journalism for journals from Newsweek to MacWorld to Wired consistently demonstrate how he’s driven by the facts rather than by any philosophical or political agenda. And that’s exactly why, once Levy has layered on so many new facts about Facebook, its principals, and its various lapses and betrayals, piling on the details from hundreds of interviews, putting all the pieces of every part of Facebook’s story into one place, his most even-handed conclusions are still damning:

“The troubled post-election version of Facebook was by no means a different company from the one it was before, but instead very much a continuation of what started in Mark Zuckerberg’s dorm room 15 years earlier. It is a company that benefits from and struggles with the legacy of its origin, its hunger for growth, and its idealistic and terrifying mission. Its audaciousness—and that of its leader—led it to be so successful. And that same audaciousness came with a punishing price.”

And what was that price? Per Levy, “Facebook now admits that the damage [from the company’s decisions to promote rapid growth over everything else] turned out far more extensive than expected, and is not easily repaired. All the while Mark Zuckerberg and his team insist, despite the scandals, that Facebook is still overwhelmingly a force for good in the world.”

Even now—even after reading Levy’s increasingly unhappy account of Facebook’s growth in size and profitability on the one hand and its growth in scandalously negligent or callous treatment of users and their data on the other—I’m still inclined to agree that Facebook is a force for good. I’m biased: Were it not for our ability to stay in touch on Facebook while half a world apart, the woman who became my wife in 2017 and I would not be married today. But, just as important, I’ve seen so many instances in which individual users and communities have found constructive uses for Facebook’s many features, ranging from the broadly political to the deeply personal. I’ve been a defender of some of Facebook’s approaches to real problems, such as its project (later known as Free Basics) and its (apparent) commitment to end-to-end encryption.

But again and again in Levy’s book I stumble across things like Facebook’s deployment of a mobile app called Onavo Protect, which purported to provide VPN (virtual private network) services for one’s phone, but whose real purpose was to gather user data about how they used other apps. For a year or two I had that Onavo app on my own damned phone! As Levy writes, “it takes a certain amount of chutzpah to present people with a privacy tool whose purpose was to gain their data.”

Far more common in the Facebook story than perverse examples like Onavo Protect are the occasions in which the company failed to anticipate problems that would arise from the markets it pushed itself into with little awareness of how its services might be misused—especially in the absence of Facebook personnel who spoke the dominant languages in those markets and who might at least theoretically identify content that violated Facebook’s content policies or other problematic uses. Take Myanmar, for example. Levy shows that Facebook learned in 2014 about how its services were being used maliciously in Myanmar, a country where large-scale mobile-phone internet access was just taking off. 

I learned about Facebook’s impact in Myanmar at roughly the same time through my contacts in Burmese civil society, and my first reaction was just as brain-dead as Facebook’s turned out to be. When I was told that incidents of civil violence were being reported on Facebook, my first thought was that this was positive—that the increasing ubiquity of smartphones with cameras was making rogue government officials and factions more accountable. What I didn’t immediately grasp (my Burmese friends politely schooled me), and what Facebook took far longer to grasp, was that false reports of crime and sexual assaults were being used to stir up violence against innocents, with a growing genocidal focus on the country’s oppressed and persecuted Rohingya minority. Levy then outlines how Facebook’s property WhatsApp, with its end-to-end encryption features and its built-in ability to amplify messages, including pro-violence messages, exacerbated the civil-discord problem in Myanmar (just as it eventually was shown to have done in the Philippines and in Brazil):

“Facebook contracted with a firm called BSR to investigate its activity in Myanmar. It found that Facebook rushed into a country where digital illiteracy was rampant: most Internet users did not know how to open a browser or set up an email account or assess online content. Yet their phones were preinstalled with Facebook. The report said that the hate speech and misinformation on Facebook suppressed the expression of Myanmar’s most vulnerable users. And worse: ‘Facebook has become a useful platform for those seeking to incite violence and cause offline harm.’ A UN report had reached a similar conclusion.” 

It’s fair to note, as Facebook’s defenders (who sometimes have included me) have noted, that all new communications technologies are destined to be misused by somebody. But Facebook’s reckless stress on its grow-first-fix-problems-later strategy more or less guaranteed that the most harmful aspects of the misuses of these new media would be exacerbated rather than mitigated. By 2018, the company began to realize it was at the bottom of a reputational hole and needed to stop digging; when Zuckerberg testified before the U.S. Senate in 2018, he responded to Sen. Patrick Leahy’s (D–Vt.) question about Myanmar by saying “what’s happening in Myanmar is a terrible tragedy, and we need to do more.”

That last line is a theme that appears again and again in the final third of the book, uttered by different top executives at Facebook. “We know we have more work to do,” an exec responded when reporters revealed that Facebook’s AI-fueled self-service ad product created the targeted category “Jew haters.”

Writes Levy: “Investigative reporters at ProPublica found 2,274 potential users identified by Facebook as fitting that category, one of more than 26,000 provided by Facebook, which apparently never vetted the [category] list itself.” When Facebook Chief Operating Officer Sheryl Sandberg, a Google veteran, met with the Congressional Black Caucus, she didn’t have a particularly strong defense for Facebook’s having (in Levy’s words) “hosted Russian propaganda that fueled white prejudice against black people” or violating civil-rights laws “because it allowed advertisers to discriminate against African-Americans.” Sandberg was reduced to “repeating, almost like a mantra, ‘We will do better.'” Sandberg later told Levy that “I walked out of there saying we, and I, have a lot of work to do.” This has become the paradigmatic Facebook response when any new scandal emerges from the company’s shortsighted strategic choices to privilege growth over due diligence. 

If there is one major exception to the company’s institutional willingness to plunge ahead into new markets and new opportunities to reap revenue, it is its cautiousness in dealing with American conservatives, primarily driven by Facebook’s head of global policy, Joel Kaplan. Levy writes that

“for years right-wing conservatives had been complaining that Facebook—run by those liberals in Silicon Valley—discriminated against them by down-ranking their posts. The claim was unsupported by data, and by many measures conservative content was overrepresented on Facebook. Fox News routinely headed the list of most-shared posts on the service, and even smaller right-wing sites like the Daily Wire were punching above their weight.” 

Facebook’s intense desire to be perceived as lacking political bias seems to have led to policies and outreach efforts—including a big powwow in Menlo Park where Zuckerberg and Sandberg personally attempted to mollify prominent conspiracy theorists like Rush Limbaugh and Glenn Beck–that added up to white-glove treatment for American conservatives. Beck, at least, told Levy he was impressed with Zuckerberg’s sincerity: “I sat across the table from him to try to gauge him [and he] was a little enigmatic, but I thought he was trying to do the right thing.” Even so, Levy writes, “after leaving Menlo Park the conservatives returned to complaining about Facebook’s treatment of them—while piling up millions of views because of their skill in exploiting Facebook’s algorithms.”

The attempts to accommodate conservative critics, occurring simultaneously with Facebook’s promises to “do better” on other content moderation issues, illustrate the bind in which the company now finds itself. It’s voicing its commitment to be more proactive in moderating malicious content and disinformation while simultaneously reassuring the squeakiest political wheels that, no, their content and policies won’t be subjected to any Facebook-imposed test of factuality or truth. In other words, it’s promising both to police more content and to police content less. Facebook’s laboring now to create a “content oversight board,” a kind of “Supreme Court” where Facebook content decisions can be appealed.

I’m skeptical of that whole oversight-board project—not least because it seems largely to sidestep the other big bucket of problems for Facebook, which is its handling of user data. I’m also skeptical about broad claims that Facebook’s content algorithms and ads truly manipulate us—in the sense of robbing us of ordinary human independence and agency—but that skepticism has no bearing on the ethical question of whether Facebook should allow malign actors to exploit user data in efforts to manipulate us (e.g., by suppressing voter turnout). Whether those efforts are effective or not isn’t relevant to the ethical questions, just as when a drunk in a bar misses when he swings at you has no bearing on whether he can be charged with attempted assault. 

Finally, I’m most skeptical as to whether anything Facebook tries to do on its own is going to either restore Facebook’s public reputation or blunt the impulse of government policymakers, both in the United States and elsewhere, to impose hobbling and even punitive regulation on the entire social-media industry (and on the tech industry generally). 

It’s clear that one reason Zuckerberg and Sandberg have been scrambling to find an accommodation that works—first and foremost with the U.S. government but also with the European Union (E.U.) and with non-E.U. nations—is that they know they need to get out of the crosshairs, especially as more of their company’s story continues to come to light. Their problem now is that Steven Levy’s Facebook: The Inside Story has instantly become the indispensable single-volume resource for all policymakers everywhere when it comes to Facebook—not because it sets out to take the company down, but because the facts it reports leave readers with no choice but to recognize how the company’s indisputable successes have been undermined by its indisputable systemic deficiencies. 

My takeaway is that Facebook could still manage a win out of all this—if it seizes this moment as an opportunity to embrace an ethical framework that’s designed for something bigger than just solving Facebook problems. I don’t believe the company’s bad behavior (or negligence—there’s plenty of both) can tell us what to think of this whole sector of the internet economy and what industry-level regulation or law should look like. As I’ve argued in my own book, I believe a new ethical framework has to be built and shared, industry-wide (affecting more companies than just Facebook). It needs to be informed by all stakeholders, including users, governments, and civil society as well as the companies themselves—and it needs to privilege fiduciary obligations to users and the general public even over any commitment to growth and profitability. Part of these obligations will entail, yes, a commitment to fighting disinformation, treating it as a cybersecurity problem—even when political stakeholders complain. 

That’s just my view—other critics will argue for different approaches, some of which will center on more regulation or laws or other government interventions, while others will argue for fewer but better-crafted ones. But what all Facebook’s critics, and the tech industry’s critics, will have in common is this: going forward, we all will be citing stuff we learned from Levy’s Facebook: The Inside Story.

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Is Trump Deliberately Sandbagging New York’s Landmark Transportation Policy?

New York’s plan to impose a congestion toll on drivers entering the lower parts of Manhattan has hit a bump in the road, with New York Gov. Andrew Cuomo (D) repeatedly claiming that federal officials are slow-walking needed approval of the policy.

“The federal approval, frankly, we just assumed it was going to be almost pro forma. They’re now using that opportunity to stop congestion pricing,” Cuomo told reporters on Monday, according to The New York Times.

The governor made the same claim last week according to the New York Post, saying in another press conference “Will [the Trump administration] hold congestion pricing hostage? Yes. That’s how they do business.”

New York’s congestion pricing plan was passed in April 2019 as part of the state’s budget. It would impose a toll on all drivers entering Manhattan streets below 60th Street, save for motorists who drive only on the island’s West Side Highway or FDR Drive.

The plan requires that some 80 percent of the revenue from these congestion tolls be spent on the city’s subway, with another 10 percent being dedicated to regional rail services.

The plan calls for having the tolls in place by January 2021, but there are still a number of details to be worked out, including how high congestion tolls should be, and who should get credits or exemptions.

That requires difficult political wrangling with powerful constituencies, from cops to truckers, who all have argued they deserve a carve-out. It also requires New York to get permission from the federal government.

Currently, there exists a general prohibition on states and localities adding tolls to roads that were funded in part by the federal government. The Federal Highway Administration (FHWA) does administer a couple of programs that make exceptions to this ban. That includes the Value Pricing Pilot Program (VPPP), through which the federal government can approve pilot congestion pricing programs to reduce congestion on existing roads.

Receiving authorization through VPPP also requires proposals to go through environmental reviews mandated by the National Environmental Policy Act (NEPA). How long that will take all depends on what level of NEPA review federal officials deem appropriate.

If New York were lucky, it would receive a categorical exemption from NEPA. More likely it will have to prepare an Environmental Assessment (an intermediate level of review) or worse, an Environmental Impact Statement (EIS). Those run an average of 670 pages and can take years to complete.

Right now, the FHWA is in the middle of determining which level of NEPA New York’s congestion pricing scheme requires. That determination will tell New York officials what information they’ll have to prepare for the feds.

Officials with the New York City government and the Metropolitan Transportation Authority (MTA)—the state agency that runs buses and trains in New York City—say they’ve been trying to get an answer from the feds about what kind of report they need to prepare since April 2019.

An FHWA spokesperson told Reason that the agency didn’t receive the supplemental information it needed to make a NEPA determination until January 2020, and it’s that delay, not Cuomo’s claimed political interference, that’s dictating the pace of federal review.

As recently as February 8, Cuomo told the Wall Street Journal that he wasn’t concerned about the potential for the Trump administration to hold things up for political reasons.

The governor could be doing a lot more to speed things along in the face of federal delays, argues Manhattan Institute transportation scholar Nicole Gelinas, who wrote in the New York Post:

[Cuomo could] have directed the MTA to take a more aggressive posture. The MTA could have prepared a short “environmental assessment,” hiring consultants to say the scheme will help the environment by discouraging people from driving. The MTA could start preparing the longer document, just in case. It requires public hearings, which are a pain, but the city completed its environmental-impact statement for its four-borough jails from start to finish in 14 months, meaning the MTA would be almost done now.

The fact that Cuomo hasn’t done those things, says Gelinas, suggests that he’s already gotten all the political mileage out of congestion pricing he can, and sees only liabilities in actually implementing the policy.

Cuomo risks pissing off motorists who will now have to pay for something they used to enjoy for free. This dynamic isn’t made better by the specific design of New York’s congestion pricing scheme, says Baruch Feigenbaum of the Reason Foundation, the nonprofit that publishes Reason.

“I think the concern is that very little of the money from the congestion price is going to improve roadways,” he said, adding that the proposed toll levels seem to have more to do with hitting revenue targets for funding transit than with easing congestion.

Feigenbaum notes that Trump isn’t above petty retribution when it comes to New York, noting his administration’s brazenly political decision to bar residents from that state from participating in Trusted Traveller programs that allow quicker passage through airport security.

Still, Feigenbaum says he hasn’t seen any evidence that this is the case with congestion pricing. Indeed, Trump has proposed reforms that would speed up NEPA reviews of projects, and limit the use of EIS.

Congestion pricing as a concept has a lot to offer a place like New York City, says Feigenbaum. There’s a lot of demand for driving on the roads, but very little space for adding new road capacity. As with most major reforms, it’s the politics of implementation that are slowing things down.

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Elizabeth Warren Adopts Cory Booker’s Plan for a Better Presidential Clemency System

Sen. Cory Booker (D–N.J.) failed to make much of an impact in his Democratic presidential campaign, but he did have a really good plan to deal with clemency if he were elected. Now Sen. Elizabeth Warren (D–Mass.) is adopting his plan into her own criminal justice reform proposal.

Last summer, Booker proposed making it easier and quicker for nonviolent federal drug offenders to seek clemency by shifting the process from the Department of Justice to the White House and creating a clemency panel to oversee the process. In particular, Booker’s plan would reduce the power of federal prosecutors to determine which clemency applications make it to the president’s desk and whether they arrive with a recommendation for denial or approval.

Warren is also supporting Booker’s plan to prioritize clemency for older inmates incarcerated for longer terms, and his proposal to quickly identify and focus on prisoners who would have benefited retroactively from sentencing changes under the First Step Act and other reforms. This second aspect is important because legislative changes to statutory sentencing practices do not automatically apply to prisoners currently serving time. The Fair Sentencing Act of 2010, which reduced the sentencing disparity between crack and powder cocaine, is a prime example of a good reform that unfortunately lacked retroactive language.

Warren’s updated plan notes:

Research shows that people tend to age out of crime and are substantially less likely to recidivate, but today thousands of elderly people remain behind bars. And those serving sentences equivalent to life in prison are disproportionately black and brown, many serving time for nonviolent crimes or crimes committed as juveniles. We are not any safer as a nation for their incarceration, nor is equal justice being served.

It’s a change criminal justice reformers have been recommending for some time and one with bipartisan appeal. President Donald Trump’s administration is considering something similar.

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