Tag: hit&run

3/29/1937: West Coast Hotel v. Parrish decided.

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In early January, the United States took out Iran’s top military leader, Gen. Qassem Soleimani, as he passed through Iraq. President Donald Trump’s decision to order the killing of a foreign government official was controversial both at home and abroad.

Is Trump charting a bold new course in the Middle East or following the failed footsteps of Presidents Barack Obama and George W. Bush? A day before Iran responded to the killing with a bombing campaign against two U.S. military bases in the region, Reason‘s Nick Gillespie spoke with Christopher A. Preble, vice president for defense and foreign policy studies at the libertarian Cato Institute.

In 1990–93, Preble served as an officer in the U.S. Navy on the USS Ticonderoga. He’s the co-author of Fuel to the Fire: How Trump Made America’s Broken Foreign Policy Even Worse (and How We Can Recover) and the author of Peace, War, and Liberty: Understanding U.S. Foreign Policy.

Q: How big a deal is the U.S. killing Iranian Gen. Soleimani?

A: It’s a really big deal. The best equivalent I’ve heard is that it would be as if someone killed both the head of U.S. Central Command and the head of the Central Intelligence Agency. One of the key differences between Soleimani and Osama bin Laden, for example, is that bin Laden was a terrorist leader, not a representative of a sovereign state.

Q: Is the difference between a terrorist and a state actor mostly legalistic, in that this could be perceived as an act of war? Or is it more moral, in that we treat generals of states we’re not at open war with differently than we do mere terrorists?

A: There’s a legal aspect of this in terms of U.S. domestic law, which prohibits the assassination of foreign government officials. But I frankly approach this more from a practical perspective. Does this advance American safety and security? Does it make Americans freer and more prosperous? The answer is no.

Q: What are the ways that this makes us less safe? 

A: The Iranians don’t have a comparable level of capability to the U.S., but they do have a willingness and the ability to carry out cyberattacks against networks. That’s a more pressing concern, perhaps, than conventional reprisals here in the U.S.

Q: Is it possible that this was the type of action that makes Iran change its behavior in the Middle East?  

A: That’s certainly what Secretary of State Mike Pompeo and what President Trump himself seem to believe. They expect Iran not to retaliate and to be deterred from retaliation by threats. This is consistent with what the Trump administration calls the “maximum pressure campaign,” which also involves sanctions.

The maximum pressure campaign has put real pain on the Iranian people. We have credible evidence of Iranians dying premature deaths from lack of access to medicine, for example. But it has not brought the Iranian government back to the negotiating table to comply with the long list of demands that the Trump administration has made.

Q: It seems like, in terms of Iraq, things are going in the wrong direction. The Iraqi government now wants the American military to get the hell out.

A: As recently as December there was rising Iraqi anger and animosity at foreign influence from both the United States and Iran. What we’ve seen in the last couple of weeks is a lot of that anger and resentment redirected to the United States.

Now, there was a lot of resentment and anger toward us already, because we’re a foreign presence in Iraqi territory. But I think that for the time being, the balance of power inside Iraq now tips toward Iran because of that strike.

This interview has been condensed and edited for style and clarity. For a podcast version, subscribe to The Reason Interview With Nick Gillespie.

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Every day in the developed world, about 20 to 30 people out of every million die. (The typical yearly death rate is about 7.5 to 10.5 per thousand, depending on how many younger people there are compared to the elderly; 7,500 to 10,500 per million, divided by 365, equals 20 to 30 per million per day.)

Judging by the WorldoMeters data from the last three days, here is the mortality owing to coronavirus, which pretty much adds to that daily death rate (averaging deaths over the last 3 days):

• Italy and Spain, with 14 to 17 deaths per day per million.
• France, Belgium, the Netherlands, and Switzerland, with deaths in the 4 to 6 per million range.
• The UK at a little under 3 per million.
• The US, Germany, Austria, Sweden, Denmark, Ireland, and Portugal, at a little under 1 per million (Germany, 0.9) to a little under 2 per million (Denmark, 1.85); the US is at 1.2, though the daily numbers in the US have risen sharply in the last two days.
• South Korea, China, and Canada are very low, below 0.25 per million (though there may be reason to be even more skeptical about Chinese data than about data generally).
• Japan and Taiwan have been barely hit at all; likewise for most of the rest of the world outside some Western European countries that I haven’t listed. (Russia is ostensibly in this category, though no Russian ever trusts numbers from Russia.)

Of course, the numbers can be much higher in particular regions. News accounts report that 84 people died per day in New York City Thursday and Friday. Over a population of 8.6 million, that’s about 10 deaths per day per million, not far off the national Italy and Spain numbers.

Likewise, most coronavirus deaths in Italy are still in Lombardy: 542 in one day, apparently Friday, out of a population of 10 million, for a daily death rate of 54 per million. That means that in Lombardy the daily death rate is basically triple the usual number. (Of course, especially since the dying are mostly the elderly or chronically ill, a much higher than usual death rate now will probably mean a considerably lower than usual death rate after this epidemic passes, because there will be fewer elderly, more-likely-to-die people left, assuming those who survive the illness won’t be permanently weakened by it. But in the meantime, it’s still people dying sooner than they otherwise would.)

The question, of course, is where are we going? (And, while we’re at it, what’s with this handbasket?) Will the daily surplus death rate substantially increase? Will it substantially decrease? How quickly? That we do not know.

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See here, which lists “[w]orkers supporting the operation of firearm or ammunition product manufacturers, retailers, importers, distributors, and shooting ranges,” but prefaces all the categories (not just the gun-related ones) with:

This list is advisory in nature. It is not, nor should it be considered, a federal directive or standard. Additionally, this advisory list is not intended to be the exclusive list of critical infrastructure sectors, workers, and functions that should continue during the COVID-19 response across all jurisdictions. Individual jurisdictions should add or subtract essential workforce categories based on their own requirements and discretion.

The Free Beacon (Stephen Gutowski) notes that, several days ago, N.J. Attorney General Gurbir Grewal defended including gun stores in the N.J. lockdown by saying,

[T]he Governor’s executive order tracks every other executive order that has a stay at home provision and none of those—none of those—contain an exemption for firearm stores, nor does the federal guidance from Homeland Security contain that type of exemption when it comes to essential facilities and nonessential facilities. So, we’re consistent with every other executive order that calls for stay at home. We’re consistent with federal guidelines and we’ll defend the Governor’s executive order in court.

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I’ve Zoomed a decent amount with students and friends, but I haven’t tried putting together something like this. In a sense, it would be like something at a conference—three or four people having a video conversation for a while (a conversation, not a panel with prepared presentations), and then Q & A, with questions likely submitted via chat rather than via audio.

Any suggestions on how to make it work, other than the obvious (have good participants and an interesting topic)?

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Are you seeing friends and family using Zoom or some such application? Which one, and how is it working out technically?

Have you found some tricks to making it work better, whether they are technical tricks or social ones (e.g., dressing up, eating dinner during the call, drinking during the call, etc.)?

Are you finding that you’re actually seeing out-of-town friends and family more now? Or are you actually enjoying having some more time at home by yourselves? Please let us know in the comments.

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It’s time for everyone to lock arms and fight #COVID19 together. pic.twitter.com/h5WSyppD3n

— Governor Gretchen Whitmer (@GovWhitmer) March 27, 2020

I don’t want to make much of this—I just thought it was a funny glitch, of the sort that all of us fall prey to from time to time. But it might also be a reminder for writers to be careful about using figurative phrases, especially ones that are so familiar that we don’t really think about their literal meaning: Sometimes, circumstances bring up that literal meaning, and make the phrase jarring or unintentionally funny.

This is closely connected to the problem of mixed metaphors (e.g., “the political equation was thus saturated with kerosene”). There, the literal meaning one half of the metaphor is highlighted by its mismatch with the literal meaning of the other half. Here, the literal meaning of “lock arms” is highlighted by its mismatch with the substance of the situation.

Thanks to Glenn Reynolds (InstaPundit) for the pointer.

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If a hospital runs out of ventilators to treat its patients, will it be liable when patients die as a result?

Courts have at times imposed malpractice liability when a hospital failed to provide a service that might have benefited a patient. For example, in Herrington v. Hiller, 883 F.2d 411 (5th Cir. 1989), the plaintiff alleged that a baby was born with brain damage as a result of a hospital’s failure to provide 24-hour-a-day anesthesia services, and the court found admissible earlier discussions among hospital personnel about whether such services might be needed. More generally:

Hospitals and other institutional providers have a duty to provide adequate staff and services to deal with unexpected medical problems. Hospitals, like physicians, are expected to keep up with an evolving standard of medical practice, particularly if its cost-benefit ratio is high. The failure of a hospital to maintain adequate services to deal with medical emergencies can create liability.

Barry R. Furrow, Enterprise Liability and Health Care Reform: Managing Care and Managing Risk, 39 St. Louis U. L.J. 77, 91 (1994) (footnotes omitted). Also:

Both hospitals and hospital management companies have been found negligent for failure to exercise reasonable care in the maintenance of the hospital’s facilities and equipment. The duty to maintain adequate facilities and equipment requires hospitals to have the facilities and equipment necessary to safely carry out the medical treatment it offers.

Mindy Nunez Duffourc, Repurposing the Affirmative Defense of Comparative Fault in Medical Malpractice, 16 Ind. Health L. Rev. 21, 28 (2018) (footnote omitted).

Hospitals, of course, would argue that they have an obligation to maintain sufficient equipment for ordinary times, not for pandemics. Assuming a hospital maintains a typical ICU capacity for hospitals, it would have a strong argument to having met the community standard of care.

If a court in its instructions emphasizes custom, hospitals may mostly be free of liability. But if a court instructed juries to apply the Hand formula, or instructed juries in a way that would implicitly allow them to consider cost-benefit type considerations, the result might well be different. A pandemic was not unpredictable, and a likely cost-benefit analysis would likely suggest that ventilators should have been purchased. If a ventilator costs $25,000, then at a value-per-life of just $5 million, the purchase would have been cost-justified if there were a 1 in 200 chance that it would be necessary–or an even lower chance if a single marginal ventilator might be used for more than one patient.

Stephen Gillers has noted that although the Hand Formula is often treated as black-letter law, jury instructions rarely mention it, but nor do they forbid the jury from applying similar considerations:

[A] puzzle lies in the gap between the authoritative blackletter status of the Hand Formula and the standard instructions given to juries in negligence cases. The proposition that negligence means creating an “unreasonable risk,” defined as one whose expected costs exceed the costs of avoiding it, has been explicitly endorsed by the Restatement of Torts, by the leading treatises, and by courts in most states. Indeed, despite the vigorous normative debates over cost-benefit analysis among legal academics, no modern decision to my knowledge squarely rejects the Hand Formula interpretation of negligence. Yet, rather than telling juries to balance the costs and benefits of greater care, courts ordinarily instruct them to determine whether the actor behaved as a “reasonably prudent person” would have under the circumstances. Even on appeal, many courts make surprisingly little use of cost-benefit analysis in reviewing negligence cases. Often, the only question on appeal is whether a reasonable jury could have found a party negligent under the reasonable person standard.

Some scholars claim that these practices demonstrate that the actual meaning of negligence in American law is defined by a reasonable person standard that marginalizes or even supplants the Hand Formula. Although these accounts vary in important particulars, their common theme is that the determination of negligence rests on a noneconomic conception of practical reasonableness that looks to community values and norms rather than to any form of cost-benefit analysis.

But the crucial feature of the pattern jury instructions on negligence is that they explicitly adopt neither of these competing theories—nor any other. Juries are told neither that a reasonable person is one who complies with community values and norms nor that a reasonable person is one who balances costs and benefits (or behaves “as if ” balancing them). Instead, the reasonable person standard is given to the jury without elaboration.

A jury would not likely engage in explicit cost-benefit balancing. But it seems to me plausible (though I would welcome comments from those with more immediate experience) that a jury might well conclude that hospitals should have recognized the need to purchase enough ventilators to handle a surge in patient capacity. A plaintiff’s case might be especially strong if a hospital had time between when an emergency loomed and when a patient died to purchase a ventilator that would have saved the patient. Juries, meanwhile, would likely be more sympathetic to hospitals that, early in the emergency, contracted to purchase ventilators (at least simple models) as soon as they were available.

Normatively, I am not sure whether hospitals should be liable. There is a strong argument that if one opens a 1,000 bed hospital, one should not be liable for not opening a 2,000 bed hospital. Liability might create a disincentive for small hospitals to open in the first place. On the other hand, it is difficult to identify an actor in a better position to anticipate potential needs for emergencies or to identify an actor that now will have strong incentives to provide demand for ventilators.

A related but separate question is whether doctors and medical professionals should be held to a lower standard of care during emergencies:

[I]n the wake of events like Hurricane Katrina and the H1N1 pandemic, there have been proposals to change the ordinary standard of care during declared emergencies. This idea is called “altered standards of care,” and suggests that there should be different standards that health care workers are held to during an emergency. Broadly, a public health emergency exists when a health situation’s “scale, timing or unpredictability threatens to overwhelm routine capabilities.” There has been significant research into, and creation of, altered standards of care for volunteers and Good Samaritans who help during emergency situations. Many of these regulations provide immunity to these individuals.

Rebecca Mansbach, Note & Comment, Altered Standards of Care: Needed Reform for when the Next Disaster Strikes, 14 J. Health Care L. & Pol’y 209, 209 (2011) (footnotes omitted). One would not want to discourage a doctor from working during the emergency because the doctor cannot provide care of the same quality as the doctor would ordinarily provide. But that is a different question from whether health care institutions should anticipate emergencies and stock up.

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See here for more; here’s an excerpt:

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Farm groups are warning that immigration restrictions put in place this month by the Trump administration could lead to food shortages down the road, Reason contributor Sean Higgins reported this week in the Washington Examiner.

Last week, the U.S. closed consulates in Mexico, which halted processing of farmworker visas there under the H-2A visa program. Earlier reports had suggested H-2A visas “would continue to be processed.”

The U.S. and Mexico also agreed last week to close the border temporarily to all but essential traffic, though commercial transport and workers with legal work permits are still free to traverse the border. The moves also come as protesters in Mexico blocked a border crossing this week to demand visitors from the United States be tested for the coronavirus before being allowed into Mexico.

The H-2A visa program lets U.S. farmers, ranchers, and other agricultural producers that anticipate labor shortages bring on foreign workers temporarily to fill the gaps. 

“Contrary to what some might assume, these visa holders aren’t unskilled labor,” Higgins writes. “Modern farming involves a lot of technology, including heavy equipment, that the workers must be familiar with, as well as other skills that ordinary people won’t possess.“

According to 2016 Labor Department data, more than 165,000 agricultural labor positions were certified that year under the H-2A program. More than half of those positions were based in Florida, North Carolina, Georgia, Washington, and California. Leading crops harvested by H-2A workers include berries, apples, melons, sweet potatoes, lettuce, and corn. More than nine out of every 10 farmworkers holding an H-2A come from Mexico.

While workers who’ve applied for an H-2A visa in the past year are eligible to renew, Higgins cites agricultural sources who say such renewals typically account for only around half of annual applicants. Unless many more existing visa holders re-apply than normally do, then, or the Trump administration changes course, the U.S. could face crippling farm labor shortages. And those labor shortages could, in turn, translate to food shortages at U.S. grocery stores.

According to a primer from the American Farm Bureau Federation, the nation’s largest farm lobby, Congress passed the Immigration and Nationality Act, which gave rise to the H-2 visa process, in the early 1950s. The H-2A program has grown dramatically in recent years, with some U.S. businesses that rely on H-2A applicants seeing their demand for guest workers double in recent years.

Secretary of State Mike Pompeo, acknowledging the potential impact of a farm labor shortage, says the administration will “do everything we can to keep that part of our economic lifeblood working.“

Meanwhile, many are downplaying the risk of any potential food shortages.

“Even if the COVID-19 pandemic stretches over months[,] there will be no big food shortages, especially on staples like milk, eggs, cheese, bread[,] and meat,” CNBC reported last week. The New York Times also reported (as did Politico) that domestic food supplies and production are on solid ground. Rodney McMullen, CEO of Kroger, told the Motley Fool that food shortages are unlikely given that “there’s plenty of food in the supply chain.” 

But, as Forbes reported last week, producers and sellers are facing many challenges, including “a number of weak spots in the food transportation system that could be aggravated by the increased demand for food.” And though some grocers are thriving right now, they’re also struggling to keep up with consumer demand.

Predictably, the U.S. isn’t the only country facing food-supply hurdles due to COVID-19. Europe, for example, is facing similar labor challenges, which are giving rise to fears of food shortages there, too.

COVID-19 has caused countries to take a variety of steps to reassess their food supplies. Some countries, for example, have begun to halt food exports. The Guardian reported this week that the United Nations warns that worker shortages, coupled with “protectionist policies”—including tariffs and export bans, including ones adopted in Kazakhstan, Vietnam, and Russia—could begin to cause food shortages around the globe “within weeks.” Global supply chains, like those in the U.S., are also being tested. 

But these fears aren’t universal. Thailand, for one, is downplaying fears of any food shortages in that country.

Ultimately, the U.S. could still avoid potential farm labor shortages if, say, the Trump administration reverses course or—less likely, given the need for skilled labor—if recently unemployed U.S. workers fill the available farm positions.

The Trump administration’s odious stance against Mexico, Mexicans, and immigrants in general casts a cloud of suspicion over its immigration and border restrictions. Vox reported last week that some observers are concerned the Trump administration is “using the crisis as a potential excuse to further restrict travel across the southern border. ” On the other hand, temporary border restrictions to battle COVID-19 make sense. They also apply at this point to people in every non-U.S. country—whether Canada, Mexico, China, England, or beyond—and vice versa.

As soon as those restrictions can be lifted safely and our borders can be reopened, they should be. American farmers and consumers depend on it.

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