Tag: hit&run

“I have never seen a thin person drinking Diet Coke,” tweeted Donald Trump, himself a frequent consumer of diet soda, back in 2012. Besides being an amusing self-own, Trump’s comment helps explain the trouble with most research on diet drinks—including a new study that’s been making the media rounds this week. 

“It doesn’t matter if it’s sugary or diet: New study links all soda to an early death,” reported The Washington Post on September 4. It was one of many similar headlines. The implication of all of them was clear: Zero-calorie cola is a big fat lie, and if you don’t ditch it now you’re staring down a premature grave.

But let’s back up. Here’s what the paper in JAMA Internal Medicine actually found about drinks containing artificial sweeteners: People who consumed two or more per day were slightly more likely than those who abstained from all soda to die from diseases related to circulatory problems. (Consuming one or more sugar-sweetened soda per day, meanwhile, was associated with increase risk of dying from liver, appendix, pancreas, and intestinal diseases.) Whether these circulatory problems are directly related to diet soda is unknown—and there are good reasons to suspect they are not.

“Researchers cautioned that elevated soft-drink consumption may be a marker for an overall unhealthy lifestyle,” the Post points out. That is, people who consume sodas daily may also be more likely to eat out at restaurants, consume processed snacks, or engage in other dietary habits that up their disease risk.

Alternately, people who don’t drink soda at all may be more likely to engage in some behaviors—drinking more water, say, or consuming other nutritious beverages—that accrue them disease-protective benefits.

And while all sorts of people drink diet soda, it tends to be especially popular among people actively trying to lose weight and/or to give up a non-diet soda habit. Which is to say that diet drink consumers could (as that Trump tweet suggests) be heavier to begin with, or could share some other quality (such as previously high consumption of sugary drinks) that sets them up for future health problems.

The scientist behind this study tried to account for some confounding factors, such as smoking and obesity. But accounting for all lifestyle differences is impossible. Here’s what the lead researcher, Neil Murphy, told the Post:

We recognize that a possible explanation for the positive associations found for artificially sweetened soft drinks is that participants who were already at greater health risk (those who were overweight or obese; those with prediabetes) may have switched to artificially sweetened soft drinks to manage their calorie and sugar intake.

Even the notoriously pro-nanny-state Center for Science in the Public Interest urged caution about the latest research. “This new European study is somewhat inconsistent with earlier findings,” the group’s director of nutrition told the Post.

That’s true: Several meta-analyses last year found no association between drinking diet soda and weight gain or increased body mass index. Those studies also found no association between aspartame (the most common artificial sweetener) and negative effects on heart-disease risk factors, fat levels, or metabolic issues.

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Thanks to a generous grant from the Stanton Foundation, and to the video production work of Meredith Bragg and Austin Bragg at Reason.tv, I’m putting together a series of 10 short, graphical YouTube videos explaining free speech law. Our first five videos were

1. “7 Things You Should Know About Free Speech in Schools,”
2. “The Three Rules of Hate Speech and the First Amendment,”
3. “Fake News and the First Amendment,”
4. “Who Owns Your Life Story?,” and
5. “Is Money Speech?“

Our sixth, which we just released, is “Corporations and the First Amendment“:

As usual for our episodes, the full script is also posted right below the video on YouTube.

We’d love it if you

1. Watched this.
2. Shared this widely.
3. Suggested people or organizations whom we might be willing to help spread it far and wide (obviously, the more detail on the potential contacts, the better).
4. Gave us feedback on the style of the presentation, since we’re always willing to change the style as we learn more.

Please post your suggestions in the comments, or e-mail me at volokh at law.ucla.edu.

Future videos in the series will likely include most of the following, plus maybe some others:

• Free speech at college.
• Speech and privacy.
• Speech on or with government property.
• Alexander Hamilton: free press pioneer.

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For a sense of the endless political resources that California’s left-leaning groups have at their ready, consider this recent turn of events. After having spent $3.45 million last year to qualify a tax-hike measure on the 2020 general-election ballot, activists have decided to start from scratch on a “new and improved” version. Given the higher vote totals that they now need, they’ll have to spend at least $5 million on the new signature drive.

This would be chump change for labor groups such as the California Teachers’ Association and the Service Employees International Union—and other prominent backersof an initiative that will obliterate Proposition 13’s tax protections on commercial property owners and small businesses. Consider $5 million a small investment given the likely payout if voters are foolish enough to embrace this record-setting property tax boost.

According to the filing at the California Secretary of State’s office, the currently qualified “split rolls” initiative will result in a “Net increase in annual property tax revenues of $6.5 billion to $10.5 billion in most years, depending on the strength of the real estate markets.” The bulk of the money “would be allocated to schools (40 percent) and other local governments (60 percent).” There are no revisions that can alter the fundamental nature of this stinker.

A spokesman for the campaign told Politico that it refiled the initiative to create “improvements to implementation dates, expansive new small business tax relief, clarified education financing and stronger zoning language to ensure large corporations cannot avoid reassessment.” He said changes will “substantially strengthen the measure” and “widen the path to victory.” I would have loved to have seen the polling that led to this costly reboot.

The proposal is known as “split rolls,” because it splits away commercial property tax protections from residential ones. Public-sector unions and Democratic officials have been gunning for Proposition 13 since its passage in 1978 amid a tax revolt. Californians were furious at rapidly rising tax bills. Elderly people were being taxed out of their homes.

The measure capped property tax rates at 1 percent of the sales price and limited increases to 2 percent a year (plus local bonds). Prop. 13 has been the third rail of California politics—you don’t touch it, if you want to live—since then.

Californians’ tax rates are among the nation’s highest in almost every category, but their property tax levels have remained reasonable. Given high home values, the state still gets a hefty share of those dollars. According to a calculator from the Howard Jarvis Taxpayers Association, the annual property taxes on my modest home would increase $15,000 if Proposition 13 were eliminated. I’d be moving out of state.

Liberals have long blamed Prop. 13 for destroying public services, but that’s malarkey. The state’s total tax take has increased significantly, even on a per-capita basis, over that time. Our government employees are the best paid in the nation, and they receive pension deals that boggle the mind. State budgets have set spending records and schools received a 66-percent funding boost over six years. Services are crummy because of bureaucratic priorities—not funding shortages.

You can consider any new property taxes as pension taxes. The California Public Employees’ Retirement System (CalPERS) and the California State Teachers’ Retirement System (CalSTRS) are vastly underfunded even after years of record stock-market gains. If recession hits, they could get sucked into an inextricable hole. This is because for years cities and school districts have been passing unaffordable pension increases. Money is fungible, so new property tax dollars—however they are earmarked—will cover up this problem.

Such a large tax increase could be economically devastating. “Increased business taxes ultimately are passed on either to consumers as higher prices, to employees as less compensation, or the general community as less business activity,” explains the California Chamber of Commerce. Higher property taxes will diminish commercial property values, which could spark another real-estate bust. That’s one of my fears as the owner of an office building.

Progressive strategy has been to chip away at Prop. 13 protections by assuring one set of property owners that they’re only coming after another set—to make “them” pay their fair share. First, they called for tightening up so-called loopholes during property transfers. Now, they want to eliminate protections from many commercial properties. Eventually, they’ll be gunning for your home. No matter how much you give them, these activists will never stop until they’ve bled your bank account dry.

Fortunately, the initial 2020 tax-hike initiative was such a mess that its backers have to start again with a new measure that is supposed to be more appealing. But polling remains dismal for them because there really is no way to put lipstick on this pig. The only way to keep such activists from the trough is to refuse to vote to increase your own taxes.

This column was first published by the Orange County Register.

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The best kind of monster, of course, is one that’s little-seen. Steven Spielberg demonstrated this in Jaws, when he famously had to find a way to not show too much of his crappy looking shark. And just a few months ago Ridley Scott, the director of Alien, told the trade mag Variety, “You don’t show the monster too many times because you’ll get used to him and you never want to get used to him—ever. The best screening room in the world is the space between your ears…your brain.”

I’m not sure Andy Muschietti got this memo. Not recently, anyway. Muschietti’s 2017 film It, his excellent adaptation of about half of Stephen King’s 1986 novel, was a model of monster economy. The director deployed his killer clown, Pennywise (Bill Skarsgård), in scenes carefully shaped for maximum terror – but also gave him bench time whenever gentler, more Spielbergian concerns had to be given play. In the new It Chapter Two, however, the bulb-headed freak is everywhere. After the first hour— and this is a movie that runs nearly three hours—he starts to wear out his welcome. Horrible stuff keeps happening, but inevitably monotony sets in, and by the end you’re gasping for fresh invention. (This is the kind of movie in which the camera angles generally tip you off that something appalling is about to happen, usually in the background of a shot.)

Okay, it’s hard to adapt an 1100-page novel. But here, even with stuff left out (for fans to gripe about), it still feels like too much has been left in. First of all, the cast is now a crowd. The story begins with the final scene in the previous film, set in the late 1980s, in which the young members of the Losers’ Club, having dispatched Pennywise at least temporarily, vow to come back to their hometown of Derry, Maine, and fight him anew if he ever returns. When he does (it happens every 27 years), and children start to go missing again, Mike Hanlon (Isaiah Mustafa)—the only member of the club who’s remained in Derry—puts in a call to each of his onetime fellow Losers, now all grown up and scattered.

Stuttery Bill Denbrough, for example, has become a successful author (and is now played by James McAvoy). Bill’s long-ago crush Beverly Marsh (Jessica Chastain) is a fashion designer married to a guy who beats her. Wise guy Richie Tozier (Bill Hader) has become, unsurprisingly, a standup comic. Tightly wound hypochondriac Eddie (James Ransone) works for an insurance company. And once-chubby Ben (Jay Ryan), now an architect, has dropped much childhood weight and currently resembles an Athenian deity. (“You look amazing,” says Richie. “What the fuck happened?”) Then there’s troubled Stanley Uris (Andy Bean)—let’s say he’s still troubled.

Most of the Losers heed Mike’s rallying call and make the trip home to Derry, where they gather at a Chinese restaurant for a gaudy gross-out scene (there are some very yucky things on the menu). Before long the original kids from the first movie—Sophia Lillis, Finn Wolfhard, Jeremy Ray Taylor, et al.—start weighing in as well, in a steady procession of ’80s flashbacks. This makes for a certain degree of narrative clutter. And when it is decided that the group should not stick together in pursuit of the fear-savoring Pennywise, but should instead split up and face their own fears separately, the movie begins to bog down seriously.

There are gripping stretches, of course: the sight of a demented clown biting into someone’s chest or chewing off someone’s face is naturally entertaining. And the long scene in which grown-up Beverly pays a visit to a majorly strange old woman is a terror classic—too bad it was already released almost in its entirety in a trailer last spring.

The actors, both young and old, make quite a bit of the movie worth watching. (Bill Hader is so sharp that there’s already been Oscar talk about his performance—even though he’s given more to work with on any random episode of his HBO show Barry than he gets here.) But the picture is crippled by its inordinate length, a problem swollen by its time-sucking search for a solid ending. (Ironically, a recurrent theme in the film is the lousy endings of Bill Denbrough’s books—a charge driven home in a meta way at one point by a cameoing Stephen King himself.) The story has no tension because we know what has to happen—the Losers have to triumph over Pennywise once again. And no matter how bloated the digital effects become—and they become hugely bloated, with Pennywise swelling up to the size of a small building in a conclusion that feels like it’ll never, ever end—they stir no awe…only a desire to be done with this thing, and then gone.

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Pride Month this June commemorated the 50th anniversary of the Stonewall Inn riots in Greenwich Village, where gay men and women fought back against police raids. Stonewall is often associated with the start of the modern LGBT rights movement, but in actuality, efforts to stop government mistreatment of gay people went back more than a decade before 1969.

The Lavender Scare, which aired on PBS during Pride Month, documents President Dwight Eisenhower’s 1953 executive order launching an official purge of homosexual federal employees. In the midst of fears of Communist spies infecting the government, gay men and women were declared to be security risks because their secret lives made them susceptible to blackmail.

This move was of course heaping injury upon injury, as the cultural belief at the time that homosexuality was a form of psychological perversion was what made gays feel they needed to keep that part of their identities secret. At any rate, there was little evidence to justify the blackmail fears, but thousands of Americans were hounded out of their jobs and had their careers ruined. Some, like astronomer and activist Frank Kameny, fought back, picketing the White House years before Stonewall. It would take decades for the order to be fully rescinded under President Bill Clinton.

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What if politics were a strategic, underhanded, zero-sum game that was actually kind of fun? Welcome to Mapmaker: The Gerrymandering Game.

Developed by Lafair Family Games and funded via Kickstarter, the board game is supposed to simulate the cutthroat stakes of the once-per-decade reapportionment process in which states redraw their congressional districts. In June, the Supreme Court ended a yearslong constitutionality debate by deciding that “gerrymandering claims present political questions beyond the reach of the federal courts.” So now it’s your turn to try. Four players pick their parties—Elephants, Donkeys, Leaves, or Porcupines—and take turns drawing segments of a congressional district border that must include at least four of the 73 “counties” on the board.

Each county contains a randomly assigned vote tally for one of the four parties. Once a prospective district is fully enclosed, the party with the highest vote total inside the boundaries wins it. Win the most districts and you win the game.

Mapmaker presents an overly optimistic scenario. The Porcupines and Leaves, for example, are given equal opportunity to draw district lines. Compared to reality—where gerrymandering serves as a way for the two major parties to entrench their duopoly—the game offers a surprisingly fair exercise in democracy.

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Diana Sanchez spent five hours in labor, screaming in pain and calling for help, before giving birth in a Denver jail cell last year. In a statement, the sheriff’s office noted that the cell was in the jail’s medical unit but says it has changed its policies so “pregnant inmates who are in any stage of labor are now transported immediately to the hospital.”

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This semester, I will be speaking across the country on a wide range of topics. Most of these events are hosted by the Federalist Society, and are open to the public:

1. September 9—Liberty University School of Law
2. September 11—The University of Tulsa College of Law
3. September 16—St. John’s University School of Law (Lunchtime)
4.  September 16—Quinnipiac University School of Law (Evening)
5. September 17—Georgetown University Law Center (Book Forum with Randy Barnett)
6. September 18—Cato Institute (Lunchtime Book Forum with Randy Barnett)
7. September 18—George Washington University Law School (Late afternoon)
8. September 20—South Texas College of Law Houston Workshop
9. September 23—Creighton University School of Law
10. September 25—Houston Federalist Society Lawyers Chapter
11. September 27—Center for Firearms Law Symposium at Duke Law School
12. October 2- Federalist Society Supreme Court Term Preview (Mayflower Hotel)
13. October 8—University of Toledo Law School
14. October 14—University of Michigan Law School
15. October 16—Houston Downtown Rotary Club
16. October 21—University of Texas at Austin School of Law
17. October 23—Cornell Law School  (Lunchtime)
18. October 23—Syracuse University College of Law (Evening)
19. October 30—University of Chicago Law School (Lunchtime)
20. October 30—Northern Illinois University College of Law (Evening)
21. November 4—BYU Law School
22. November 6—Villanova University School of Law (Lunchtime)
23. November 6—Rutgers Law School Camden (Evening)
24. November 13—George Mason University, Antonin Scalia Law School
25. November 16—Federalist Society National Lawyer’s Convention
26. November 18—University of Houston Law Center

My calendar is filling up for the spring semester. Please drop me a line if you are interested in hosting me.

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In February 2019, the District Court for the Southern District of Mississippi found in Thomas v. Bryant that State Senate District 22 v∂iolated the Votings Rights Act. The state petitioned the Fifth Circuit for a stay. However, a divided three-judge motions panel denied that request. Judge Clement dissented, and provided a glimpse into the court’s internal proceedings:

This case presents several extraordinary issues. Unfortunately, this court’s usual procedures do not appear to permit en banc review of this denial of a stay even if a majority of the active judges would otherwise grant it. I am afraid defendants have simply had the poor luck of drawing a majority-minority panel.

At the time, I criticized this passage on two grounds. First, she speculated at the likely outcome of a vote that could not be taken by the Fifth Circuit. Second, her reference to a “majority-minority” panel was a “poor attempt at humor will weaken the collegiality on what can be a feisty court.”

Putting these barbs aside, was Judge Clement correct that “this court’s usual procedures do not appear to permit en banc review of this denial of a stay”?

The Fifth Circuit’s Practitioner’s Guide offers this advice:

Procedural and interim matters, such as stay orders, injunctions pending appeal, appointment of counsel, leave to appeal in forma pauperis, denial of permission for an abusive litigant to file pleadings, denials of more time to file briefs, etc., are not matters subject to en banc consideration.

However, there is a problem relying solely on this guide. In a 2015 blog post, I observed:

There is nothing in the 5th Circuit’s local rules suggesting that stay orders are not subject to an en banc vote. While the practitioner’s guide is certainly helpful, it does not trump the FRAP, or the local rules, which expressly provide for an en banc vote for any “proceeding,” of which a stay vote counts.

The local rules make no specification that stays are excluded from en banc polls:

REQUESTING A POLL ON COURT’S OWN MOTION – ANY ACTIVE MEMBER OF THE COURT OR ANY MEMBER OF THE PANEL RENDERING THE DECISION MAY REQUEST A POLL OF THE ACTIVE MEMBERS OF THE COURT WHETHER REHEARING EN BANC SHOULD BE GRANTED, WHETHER OR NOT A PARTY FILED A PETITION FOR REHEARING EN BANC. A REQUESTING JUDGE ORDINARILY SENDS A LETTER TO THE CHIEF JUDGE WITH COPIES TO THE OTHER ACTIVE JUDGES OF THE COURT AND ANY OTHER PANEL MEMBER.

(None other than Leif Olson–yes that Leif Olson–helped me with that post during the Texas v. U.S. litigation.)

On Tuesday, Thomas v. Bryant returned to the Fifth Circuit on direct appeal. And, a divided three-judge panel affirmed the District Court in part. Judge Willett “[r]espectfully, but fervently” dissented. Towards the end of his separate writing, Judge Willett poses, and answers the question Judge Clement flagged:

One might ask, “Well, if a majority of the court thought the order denying the stay was wrong, why didn’t they take it en banc and fix it?” Answer: because a majority of our court thinks we are legally prohibited from taking an “interim” decision en banc.

Why is the Fifth Circuit “legally prohibited” from doing so?

Where might such a prohibition come from? It’s certainly not in the Federal Rules of Appellate Procedure. Rule 35 says a majority of a circuit’s judges “may order that an appeal or other proceeding be heard or reheard by the court of appeals en banc.” And our operating procedures say “[a]ny active member of [our] court . . . may request a poll,” whether or not the parties ask for one themselves. It’s hard to imagine how the proceedings before the panel, which as a matter of constitutional necessity comprised a case or controversy, could not also be a “proceeding” under Rule 35. And they’re certainly part of the larger “appeal” currently before our court.

Judge Willett notes that the Fourth, Seventh, Eighth, and Ninth Circuits have all reviewed en banc stay motions.

Perhaps that’s why our fellow circuit courts routinely entertain en banc petitions over appeals or proceedings like this one. If the Federal Rules prohibited en banc consideration of such motions, the prohibition would apply in our sister circuits as much as it would in ours. But it doesn’t.

Why, then is the Fifth Circuit different? Judge Willett cites the “non-public ‘Internal Court Policies.'”

One thing that might differentiate our court from others is our non-public “Internal Court Policies.” Might those prohibit us from reconsidering an “interim” decision en banc? Again, no. I cannot quote our internal policies because they are stamped: “NOT FOR PUBLIC DISTRIBUTION.” But I don’t need to quote them to prove nonpublic “rules” aren’t rules at all.

I have heard through the grapevine that such a policy exists, but this is the first time I have seen confirmation of that rumor from the court itself. I agree with Judge Willett. Rules that are not published are not rules.

Indeed, Judge Willett invoked what Justice Scalia referred to as “Nero’s nasty practices.”

A rule we apply and yet never disclose is worse than a rule posted “high on the columns so that [it] would be harder to read and easier to transgress.”

Judge Willett then adds a bit of a wrinkle–if the panel’s decision was not subject to en banc review, then it may not bind other panels:

Three judges, who act on behalf of all of us, can issue a decision that binds all of us precisely because there is a mechanism that allows the full Court to revisit that decision. As wrong as it is, the order denying a stay in this case is now published in the Federal Reporter, and it establishes Fifth Circuit precedent on the workings of stay applications. But if the full court cannot take it en banc, then perhaps the other members of this court—who never had the opportunity to reject or bless what the panel did here—should not be bound by it in a future case. Which, of course, invites chaos as each motions panel becomes a law unto itself.

He concludes:

I firmly believe every one of my colleagues strives to get the right answer when he or she sits on a panel or rules on a single-judge motion. But we all make mistakes. By not taking the stay denial en banc, we shirked our duty to correct a serious mistake. Not because this case is unimportant, and not because we’re unconvinced a grievous mistake was committed. But rather because we’ve convinced ourselves that our hands are tied. I hope, in time, we’ll recognize that’s a mistake too.

I emphatically agree with Judge Willett. This practice is a mistake. The Fifth Circuit should rescind this internal document. It is fundamentally unfair to operate a secret rule practice, with no notice, that is inconsistent with FRAP.

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In English, at least, you can generally avoid taking a stand on a person’s gender by using the person’s name instead of a pronoun. It may sound awkward, and it’s probably hard to do on the spur of the moment in speech, but it’s possible, especially when you’re writing and can edit things accordingly. And when you’re talking to the person, “you” works regardless of sex.

But in Russian, you can’t even do that: When you’re talking about a person in the past tense, the verb is different for men and women. That’s true in the third person, in the second, and in the first (though, thankfully, it’s at least not true in the second person formal). So if I’m taking about Pat having worked, for a male Pat it would be “Pat rabotal,” while for a female Pat it would be “Pat rabotala.” If I’m talking to Pat using the informal second person, I’d say “ty rabotal” to male Pat and “ty rabotala” to female Pat.

Likewise, if I want to use adjectives to describe someone, the adjectives are also gender-marked. To say a male Pat is smart, I’d say “Pat umniy”; to say a female Pat is smart, I’d say “Pat umnaya.” Can’t dodge the question in Russian; you’ve got to commit to one gender or the other.

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