“The Possibility of Prosecuting Federal Court Leakers—Update & Rejoinder”

I much appreciate their writing this, and am delighted to pass it along:

We are grateful to Professor Volokh for featuring our June 1 Wall Street Journal op-ed (and, previously, our Bloomberg Law article) questioning common claims that there is no federal law criminalizing the leaking of court-sensitive information, such as a draft Supreme Court opinion. In his parting comments on the WSJ piece, Eugene observes that he is “not sure how viable these arguments are,” and then observes two discrete issues. True to form, Eugene has kindly afforded us an opportunity to respond.

Let us kick things off by some early, but necessary, scene (re-)setting. The goals of our articles were modest. We read the near-unanimous claims, advanced in outlets ranging from the Washington Post, Reuters, and Wired to USA Today, PolitiFact, Fox, and Bloomberg, that “leaking [court-sensitive information]” is not—and, indeed, could likely never be—a crime. Could this steady drumbeat of headlines possibly be accurate? And is there really a need for the proposed “Leaker Accountability Act of 2022” designed to, per The Hill, “criminalize Supreme Court leaks”?

We conducted some research into whether federal law clerks (and, for that matter, other chambers staff) at the Supreme Court or in the lower courts could share court-sensitive information with the outside world without fear of prosecution. We then decided to put “pen to paper” regarding our findings (subject, of course, to unyielding word-count maximums).

Our conclusion was that, with the exception of Andrew McCarthy and a few others, most in the legal commentariat jumped the gun. Depending on how the all-important facts turn out, we believe the following statutes could all be in play when a member of a federal judge’s staff, including a law clerk, leaks court-sensitive information: 18 U.S.C. §§ 371 (conspiracy), 641 (theft of government property/information), 1001 (false statement), 1512 (corruptly influencing an official proceeding), and 1905 (disclosure of confidential information). (For present purposes we assumed that a Justice did not leak the draft Supreme Court opinion. As such, we did not address what, if any, consequences such a Justice could face, especially given the Constitutional dimensions of the question.)

Of course, saying that the Department of Justice could bring criminal charges is not the same as taking a position about whether a law clerk leaker should be prosecuted or whether a particular statute must apply. That certainly is not what we were saying—or have ever said. And how could we? The facts are undeveloped. The investigation is ongoing. The aggravating and mitigating factors are unknown.

Further, and equally overlooked by many, is the fact that before any federal prosecutor would file charges, the prosecutor must first conduct an investigation. The ability to investigate necessarily should be predicated on a good-faith legal theory, even if generally untested. So long as a legal predicate justifies the criminal investigation, federal prosecutors may make use of the considerable investigative tools within their power to assess whether identifiable criminal statutes have been violated. These tools include the power to subpoena phone records, texts, and testimony, and issue search warrants for, say, email accounts and the contents of laptops. If the pundits are correct that there is no criminal law that could be broken here, then there also is no predicate for taking vital (and traditional) investigative steps, such as opening a federal grand jury investigation.

With these preliminary observations addressed, we turn to the two specific questions Eugene raises about our Section 1905 and 1512 prosecution theories. (We note that Eugene did not direct any critiques at our Sections 371, 641, and 1001 arguments. We appreciate that this doesn’t necessarily mean he is totally on board with them, but for today we will leave them to stand as they are.)

What Information Is Protected (18 U.S.C. § 1905)?

To be sure, Eugene is absolutely correct about Section 1905: there is ample room for motions practice to be waged over whether the misdemeanor crime codified in 18 U.S.C. § 1905 covers draft opinions of the federal courts. After all, Section 1905 does not criminalize all disclosures (1) made by federal employees who (2) without authorization (3) disclose information (4) they learned about through their employment. If Section 1905 were that broad, many law clerks might need defense counsel.

Instead, what must be protected are discrete categories of confidential information, namely, information relating to or concerning, in relevant part, “processes, operations, style of work, or apparatus.” (Emphasis added). And, although Section 1905 does not specify an express state of mind for the crime to be committed, the courts have stepped in and explained that “the appropriate culpability must at least include knowledge that the information is confidential in the sense that its disclosure is forbidden by agency official policy (or by regulation or law).” (United States v. Wallington, 5th Cir. 1989) (emphasis in original).

Thus, the prosecutor’s argument would go something like this: Based on the text of Section 1905, a draft Supreme Court opinion—along with the ever-critical fact of a 5-to-4 split ruling, the outcome of a case, and similar information—”concerns” or “relates to” the judicial “process,” “operation,” or “style of work” of the Court or the individual (or collective) Justices. After all, the leaker’s unauthorized actions revealed the Court’s internal deliberative processes; those actions exposed the inner sanctum of the Court’s operations. They also revealed the ruling’s draft language, even though the language and thinking may have been far from final and indeed may still very much be iterative in nature.

Consider also that, per Black’s Law Dictionary, “processes” and “operations” mean “a method, mode, or operation, whereby a result or effect is produced; normal or actual course of procedure.” To be sure, a skilled defense attorney would—and, frankly, must—argue that a one-time surreptitious release of a draft opinion is not the same as sharing information concerning the Court’s methods, modes, or operations (the latter of which defense counsel could argue sound in ongoing/regular government routines or practices). But that same defense counsel also would need to contend with the fact that the leaker not only revealed the draft opinion (in its full form), but the vote of each Justice as well as the final vote count.

Consider further that Section 1905 is not just limited to information of private parties given to the government; it applies equally to government-generated confidential information. See United States v. Wallington. And, in the end, the real question is whether Section 1905’s text ab initio renders the more pro-prosecution perspective invalid. There may be room to debate the issue, but we still think it is an overstatement for the pundits to proclaim that Section 1905 could never apply.

Do We Need the “Leaker Accountability Act of 2022” to Come to Section 1905’s Rescue?

The proposed “Leaker Accountability Act” seeks to head this just-discussed “processes, operations, style of work, or apparatus” definitional issue off at the legislative pass. Other than being a felony by providing for five years in prison, rather than Section 1905’s one-year-or-less punishment, the Leaker Accountability Act is pretty clearly modeled on Section 1905. It would prohibit Supreme Court employees from sharing “confidential information,” and then provides an intentionally broad definition of the term to include verbal court-related communications, draft opinions, non-public personal information about the Justices, information designated confidential by the Chief Justice, among other categories.

Although this proposed law would remove the above-referenced textual ambiguity by clearly criminalizing even a one-time incident of leaking, it is puzzling that its drafters would limit its application to only “officer[s] or employee[s] of the Supreme Court.” Does the leaking of court-sensitive federal appellate or district court information, for example, not also pose significant risks to the integrity and operation of the judiciary? Put differently, if Section 1905 is, in fact, in need of such clarification, is there really a good reason to limit its applicability only to the High Court? We think not.

In any event, the draft legislation shows that even members of Congress are turning first to Section 1905 when assessing whether the Supreme Court leaker’s actions amounted to a crime. The proposed language would resolve the so-called ambiguity question definitively and affirmatively.

What Is “Corruptly” for Section 1512 Purposes?

We next turn to a topic on which we feel that, despite Eugene’s potential concerns, our position is on firm ground, namely, the definition of “corruptly” in 18 U.S.C. § 1512. Section 1512, you will recall, makes it a crime to corruptly influence, or try to influence, an official proceeding. Our view is that a federal employee seeking to “influence” the proceeding by, for example, generating public pressure to change or lock in a justice’s vote, might in so doing have crossed into Section 1512 territory.

Eugene posits that a “broad reading of ‘corruptly’ in Nordean isn’t obviously correct.” But, for a statute such as 18 U.S.C. § 1512(c)(2), which requires a prosecutor to prove that the leaker acted “corruptly,” courts (including the Supreme Court) have held that “corruptly,” as used in the federal obstruction statutes, means to act “wrongfully” through either one’s “means or his purpose.” Id. (citing United States v. Sandlin, __ F. Supp. 3d __, 2021 WL 5865006, at *11 (D.D.C. Dec. 10, 2021)). Indeed, in Arthur Andersen LLP v. United States, 544 U.S. 696 (2005), and while addressing the meaning of “corruptly” in Section 1512(b), the Supreme Court held that “corrupt” and “corruptly” were associated with, inter alia, “wrongful” behavior. Id. at 705 (citing dictionaries).

In that context, the Supreme Court suggested that “corruptly” meant “wrongdoing.” Id. at 705-06 (“consciousness of wrongdoing” joins the meanings of “knowingly” and “corruptly” together). Further, at least two district courts sitting in D.C. last year agreed that reading “corruptly” to mean “wrongfully” resolves many potential textual ambiguities because “wrongfully provides another well-settled meaning applicable here: ‘contrary to law, statute, or established rule.'” Sandlin, at *13 (citing Wrongful, def. 3(a), Oxford English Dictionary (2d ed. 1989)); see also United States v. Nordean, D.D.C. 2021.

The upshot is that, provided the facts support the argument that the leaker was trying to use improper (“wrongful”) means to put pressure on a Justice to change or lock in his/her vote (“influence the proceedings”), we think sufficient predication exists for a federal prosecutor to investigate whether the leaker’s actions could have violated Section 1512.

Parting Thoughts

We wish to stress (again) that our point has never been that a jury would necessarily convict the leaker, or that a federal prosecutor should bring charges in the first place. Instead, we are pushing against the prevailing narrative that criminally prosecuting a law clerk leaker is an out-of-the-gate non-starter.

That some (and, perhaps many) may harbor doubts about how the possible facts and prosecutorial approaches might interact with statutory language does not defeat our purpose. Indeed, as those who spend time in the courtroom know, there is virtually nothing a lawyer can say in court that will not trigger lengthy briefings and argument to the contrary by an opposing party. In short, we continue to believe that the legal commentariat’s categorical claims that the leaker need never fear a federal criminal investigation or charges fall short of the mark.

The post "The Possibility of Prosecuting Federal Court Leakers—Update & Rejoinder" appeared first on Reason.com.

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Chicago Mayor Lori Lightfoot Says People Charged With Violent Crimes Are Guilty Because Prosecutors Say So


Chicago Mayor Lori Lightfoot at public event.

Chicago Mayor Lori Lightfoot has repeatedly blamed bail reforms and local judges for exacerbating gun violence by releasing defendants back onto the streets, but on Monday she took her rhetoric a step further, saying that people charged with violent crime should be kept in jail because only guilty people get charged with violent crimes.

The comments, first reported by the Chicago Tribune, were part of a longer harangue against the Cook County courts and bail reform efforts.

“We shouldn’t be locking up nonviolent individuals just because they can’t afford to pay bail. But, given the exacting standards that the state’s attorney has for charging a case, which is proof beyond a reasonable doubt, when those charges are brought, these people are guilty,” Lightfoot said. “Of course they’re entitled to a presumption of innocence. Of course they’re entitled to their day in court. But residents in our community are also entitled to safety from dangerous people, so we need to keep pressing the criminal courts to lock up violent dangerous people and not put them out on bail or electronic monitoring back into the very same communities where brave souls are mustering the courage to come forward and say, ‘this is the person who is responsible.'”

The comments outraged civil liberties advocates and public defenders in Chicago, and rightly so. They should offend anyone familiar with the American criminal justice system and why it places such an emphasis on the presumption of innocence: to force the government to prove its case and shield defendants from prejudice and demagoguery. Lightfoot’s statements are particularly absurd, given the enormous amount of taxpayer money Chicago has spent settling wrongful conviction lawsuits.

“It is sad to see a highly-trained lawyer and former prosecutor so badly mangle the meaning of our Constitution,” Alexandra Block, a senior attorney at the American Civil Liberties Union (ACLU) of Illinois, said in a statement to Chicago Tribune reporter Gregory Pratt. “A charge based solely on assertions of police often has proven unreliable in this city—as evidenced by the city’s history of paying large settlements for CPD’s role in wrongful convictions.”

Last month, the Chicago City Council voted to approve a $14.25 million settlement to Daniel Taylor, who spent more than 20 years in prison after being wrongfully convicted of a 1992 double murder. Taylor alleged that police beat a false confession out of him and hid evidence that he was actually in police custody at the time of the murders. His conviction was overturned in 2013 after the Illinois attorney general revealed that the county prosecutors had failed to disclose exculpatory evidence to Taylor’s defense counsel, including custody records and interviews with several officers showing that Taylor was indeed behind bars before, during, and after the murders. Two other co-defendants in Taylor’s case also received a combined $10.5 million settlement.

In 2017, BuzzFeed News published an investigation into accusations that retired Chicago detective Reynaldo Guevara had framed more than 50 people for murders they did not commit. Since then, at least 20 people have already been exonerated in cases that Guevara led.

The most infamous and expensive series of wrongful conviction cases in Chicago have been tied to disgraced Chicago police commander Jon Burge. Burge led a group of detectives who were accused of torturing confessions out of more than 100 men between 1972 and 1991, using methods like suffocation, electrocution, and burning. Burge was fired in 1993 after a police board found he tortured a man suspected of killing a police officer. Overall, Chicago taxpayers have footed the bill for $130 million in lawsuit settlements and judgments related to Burge and his crew, including $5.5 million in reparations to torture survivors.

“Chicago is the false confession capital of the nation,” Cook County Public Defender Sharone R. Mitchel Jr. said in a statement. “For decades, the city has shamefully disregarded the presumption of innocence—which applies to everyone, regardless of the charge against them. As an attorney, Chicago Mayor Lori Lightfoot knows that the criminal justice system is not designed to decide guilt early in a case. In fact, in the past year the Cook County Public Defender’s Office represented people in more than 11,000 cases that ended in dismissal or a finding of not guilty.”

As the ACLU and public defender’s office both noted, Lightfoot’s attacks on bail reforms have been based on shoddy or nonexistent data. WBEZ reported last year that hacked emails from Lightfoot’s office showed that city officials and CPD were aware that the link between gun violence and people bonding out of jail was weak and not supported by studies, but they continued to press the talking point anyway.

Lightfoot’s office tried to clean up the mess in a statement later on Monday.

“Let’s be clear, as a lawyer, former federal prosecutor, and former criminal defense attorney, the Mayor, of course, knows that individuals are entitled to the presumption of innocence, which is precisely what she said today,” Lightfoot’s office said. “The Mayor has been explicit that violent offenders should be held accountable for their actions that harm our communities.”

Precisely, but not entirely. She also said that the bar for prosecutors to win cases is so high that prosecutors won’t bring weak cases, but Chicago’s recent history shows the exact opposite.

Lightfoot has a habit, when criticized or facing political pressure, of embracing authoritarian solutions and rhetoric. She recently tried to change the city’s curfew for teens through an executive order, despite the fact that such statutory changes have to go through the City Council.

Lightfoot has also repeatedly called on the City Council to pass a new ordinance allowing the city to sue gang members and seize their property, despite pushback from civil liberties groups. Or how about when Lightfoot threatened to jail people who violated Chicago’s stay-at-home orders during the early stages of the COVID-19 pandemic?

Lightfoot often says exactly what she thinks, and if it was a mistake, it was only for erring on the side of too much disclosure.

The post Chicago Mayor Lori Lightfoot Says People Charged With Violent Crimes Are Guilty Because Prosecutors Say So appeared first on Reason.com.

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What are Georgetown Professors Forbidden to Say?

Ilya Shapiro, as many of you know, was suspended and investigated by the Georgetown law school—where he had been about to start a job as a lecturer and as executive director of the Georgetown Center for the Constitution—for tweeting the following about the Ketanji Brown Jackson nomination:

Objectively best pick for Biden is Sri Srinivasan, who is solid prog & v smart. Even has identity politics benefit of being first Asian (Indian) American. But alas doesn’t fit into the latest intersectionality hierarchy so we’ll get lesser black woman. Thank heaven for small favors?

Because Biden said he’s only consider[ing] black women for SCOTUS, his nominee will always have an asterisk attached. Fitting that the Court takes up affirmative action next term.

Last week, the Georgetown dean announced that Shapiro wouldn’t be disciplined for this Tweet, on the grounds that “As Mr. Shapiro posted the tweets on January 26, 2022, but his employment did not start until February 1, 2022, IDEAA and HR concluded that Mr. Shapiro was not a Georgetown employee at the time of his tweets.” Shapiro then quit, saying he didn’t want to work in such an environment.

But whatever you might think about what happened to Shapiro, this incident also produced a report from the IDEAA office that deals with all of Georgetown, not just the law school. (I’ve received a copy, on condition that I can quote it but can’t post it.) And this tells us about much more than just the Shapiro incident: It gives us a good sense about what all Georgetown professors are, at least ostensibly, forbidden from saying. I’d like to use this post to explore that.

[1.] The “harassment” policy does ban public expression by professors. Here’s the key paragraph (emphasis added):

As detailed in this report, Respondent’s conduct had a significant negative impact on the Georgetown community. However, as the Respondent was a third party and not an employee at the time he posted the comments on Twitter, consistent with IDEAA’s Grievance Procedures to Investigate Allegations of Discrimination and Harassment, IDEAA refers this matter to the Dean to consider and implement appropriate corrective measures to address the impact of the Respondent’s objectively offensive comment. It is important to note that, given the Respondent’s role in the Law Center, if he were to make another, similar or more serious remark as a Georgetown employee, a hostile environment based on race, gender, and sex likely would be created.

Or, elsewhere (emphasis added):

As the Respondent was a third party and not an employee at the time that he posted the comments on Twitter, IDEAA makes no determination as to whether his actions violate IDEAA policy. Instead, consistent with IDEAA’s Grievance Procedures to Investigate Allegations of Discrimination and Harassment, IDEAA refers this matter to the Dean with a recommendation of appropriate corrective measures to address the impact of the Respondent’s objectively offensive comments and to prevent the recurrence of offensive conduct based on race, gender, and sex.

Shapiro thus apparently avoided a finding that he had violated the harassment policy only because he hadn’t yet started at Georgetown; and “Respondent’s role” (which is what would make similar comments as an employee likely prohibited) would be shared by anyone who teaches classes or runs programs—the IDEAA report’s rationale had to do with Shapiro’s role as teacher and not just as a program administrator.

[2.] The policy bans expression of views in social media, op-eds, conferences, scholarship, and more. The restriction on professors’ speech isn’t limited to the classroom, or for that matter to the campus. It obviously extends to social media, and the same logic would apply to any other public speech that might be have “a significant negative impact” because students will hear about it and be upset by it (again, more on the specific details below).

That logic thus extends to scholarship and other professional work, as well as op-eds, radio and television appearances, and the like, and not just to quick sound bites on Twitter. And of course it extends to the viewpoint being expressed, and not just the particular words that are used to express it. Georgetown professors could thus be disciplined for “prohibit[ed]” “harass[ing]” viewpoints they express in their research, as well as of course in their public political commentary.

To quote the IDEAA report,

[T]he [Georgetown] Speech and Expression Policy clarifies that its provision of free speech is not unfettered. The Speech and Expression Policy cautions that “[t]he freedom to debate and discuss the merits of competing ideas does not mean that individuals may say whatever they wish, whenever they want.” Instead, Georgetown prohibits speech and expression that “violates the University’s Harassment Policy,” among other exceptions.

[3.] The policy extends to any speech that expresses views that sufficiently offend “reasonable” students “in the impacted individual’s position” based on their identity group membership. Here are some key paragraphs:

However, IDEAA has significant concerns about the Respondent’s comments, particularly as they could have the effect of limiting Black women students’ access to courses taught by the Respondent and undermine Georgetown Law’s commitment to maintain inclusive learning and working environments. The Respondent’s comments also may discourage Black women and their allies from seeking internships and employment at the Center….

Here, the actual impact of the Respondent’s conduct has been profound. More than 1,000 students and student organizations signed a letter “to condemn his racist tweet” and to give voice to the “hurt felt today by the Black community, and in particular Black women.” … [M]any faculty, staff, alumni, and prospective students expressed their outrage, concern, and hurt. The evidence establishes that the Respondent’s conduct adversely affected the Law Center’s environment.

[4.] The policy “prohibit[s]” similar speech that relates not just to race or sex, but also to “age, … disability, family responsibilities, gender identity and expression, genetic information, marital status, national origin and accent, personal appearance, political affiliation, pregnancy, … religion, … sexual orientation, source of income, veteran’s status or other factors prohibited by federal and/or District of Columbia law.”

Harassment is verbal or physical conduct that denigrates or shows hostility or aversion to an individual because of a Protected Category as specified above, when such conduct has the purpose or effect of: unreasonably interfering with an individual or third party’s academic or work performance; creating an intimidating, hostile, or offensive educational or work environment; or otherwise adversely affecting an individual or third party’s academic or employment opportunities.

And from the IDEAA report, we know that even isolated expressions such as Shapiro’s can qualify, at least so long as enough people convey that they are offended, and the administration views their reaction as reflecting “the perspective of a reasonable person in the impacted individual’s position, considering all the circumstances.”

[5.] And this can of course cover a wide range of expression about these topics. Consider some hypotheticals:

[a.] “The Republicans could have nominated a serious candidate, but instead they nominated an evangelical Christian, who adheres to a bigoted and irrational belief system.” That would “denigrate[]” the person based in part on his religion, and “could have the effect of limiting [evangelical Christian] students’ access to courses taught by the [professor] and undermine Georgetown Law’s commitment to maintain inclusive learning and working environments,” as well as “discourag[ing evangelical Christians] and their allies from seeking internships and employment at [programs the professor helps run].”

After all, the IDEAA report takes the view that the “lesser black woman” statement (which in context seems to me to have simply meant “lesser than Sri Srinivasan, and chosen because she is a black woman”) could be read as an insult to black women generally:

His plain words not only explicitly identified the race, sex, and gender of a group of individuals (i.e., Black women) but also categorized Black women as “lesser.”

Well, in the hypothetical, one can even more easily say that the professor’s “plain words not only explicitly identified the [religion] of a group of individuals (i.e., evangelical Christians) but also categorized evangelical Christians as ‘bigoted and irrational.'” That speech would thus be “prohibit[ed] harassment,” at least so long as it creates enough of an outcry. (Certainly a reasonable evangelical Christian could view these words as denigrating and showing hostility.)

[b.] “[W]e have only one political party in this country, the Democrats. The other group is a combination of a cult and an insurrection-supporting crime syndicate.” (This one isn’t actually a hypothetical, but a Tweet from an actual Georgetown law professor.)

That would “denigrate[]” Republicans based on their “political affiliation” (which D.C. law and thus the Georgetown policy defines as meaning party affiliation). It could deter Republican students from taking the professor’s classes, or seeking internships at programs the professor runs. The plain words categorize Republicans as cultists and criminals, or at least people who support cultists and criminals. They too would ostensibly be “prohibit[ed]” as “harassment,” at least so long as they create enough of an outcry.

[c.] “‘With the exception of traditionally black law schools, the median black law school grade point average has been at the 6.7th percentile of white law students,’ at least based on 1990s data, and ‘only 7.5% of blacks have grades that are higher than the white median.’ Why is that, and what can we do about it?” That would be equally “prohibit[ed],” it seems to me (at least assuming it leads to enough of an outcry), and the Georgetown Sellers/Batson incident may offer some evidence about how Georgetown administrators might react to it. Indeed, to quote a professor with whom I corresponded about that incident, some at Georgetown think it’s wrong for professors even to think this:

In my experience, it is factually incorrect to say [that the bottom of the Georgetown class contains a disproportionate number of black students]. It is also in my view wrong for faculty to be thinking—not just speaking—along those lines, because it will tend to create the very facts that it purports to describe.

[d.] “I believe in the Bible / Torah / Koran, and they tell me that homosexuality is a sin.” That would be at least as harsh towards gays and lesbians as the “lesser black woman” statement was towards black women. Indeed, it would in my view be much more harsh, since the hypothetical statement about homosexuality does condemn all gays (and likely lesbians, though that might be more complicated); Shapiro’s statement, I think, didn’t deride all black women (and derided one just as being lesser than the best candidate).

[e.] “Judge Johnson got his position because he is an unfairly privileged white male.” This too denigrates and shows hostility to the judge—and, following the IDEAA’s analysis, to the group to which he belongs—by condemning a particular demographic’s accomplishments as being the result of unfair privilege. (Some might argue that this is an accurate condemnation, but the harassment policy and the IDEAA’s logic don’t turn on whether the assertions are accurate.)

[f.] “I don’t approve of all this respect we show for veterans (at least of the post-draft era), who willingly involved themselves in the military’s killing machine.” This expressly denigrates and shows hostility based on “veteran’s status,” one of the categories forbidden by the Georgetown harassment policy.

[g.] “Trust fund babies; they’re the worst. Whenever I hear of them, I think of all their unearned privilege, and how they’re taking up spots at universities that could be used by the poor and the hard-working.” That expressly denigrates and shows hostility based on “source of income,” another forbidden category; and it could lead such people to worry that they’re going to be graded unfairly, and treated unfairly in applications for jobs, internships, and the like.

[h.] “Israelis are complicit in their government’s crimes against Palestinians.” This expressly denigrates and shows hostility to Israelis, and it seems to me quite plausible that “a reasonable person” of Israeli extraction (for instance, one who was born there, or whose parents were born there) would view this as also showing hostility based on “national origin” to people like him or to those to whom he is an “all[y].”

[i.] “Hate killings and unjustified killings by police, bad as they are, are a much smaller problem for the black community than are black-on-black murders.” Now I don’t think this shows denigrates or shows hostility based on race; and I think it’s likely an accurate statement that is an important element in thinking about how to save black lives (and see this recent study).

But if you were a professor at Georgetown, would you feel sure that the IDEAA wouldn’t interpret this statement as covered by the harassment policy—especially if the statement yields massive protests at which “many faculty, staff, alumni, and prospective students expressed their outrage, concern, and hurt,” which the IDEAA could view as “establish[ing] that [such a statement] adversely affected the [university] environment”?

[* * *]

The list could go on. It doesn’t matter whether you care about Ilya Shapiro’s career. The important thing here, I think, is just how much speech is now in peril, going forward, for Georgetown professors generally (especially ones who lack tenure, but even the tenured ones).

(To be sure, one might speculate that Georgetown wouldn’t actually read the policy as covering some of these examples, such as the ones about the “unfairly privileged white male,” or veterans, or trust fund babies, or Israelis, or evangelical Christians. But that’s not consistent, I think, with the policy, as interpreted using the logic of the IDEAA report. And if such speculation is accurate, it seems to me it would make the situation at Georgetown worse, not better.)

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America’s Failed Opioid Policy Drove the Tulsa Shooter to Violence


Bottle of pain pills tipped over.

There’s an old adage among physicians that “the patient can always hurt you more.” This refers to the emotional toll personal mistakes and surgical complications can have on physicians when treating ill patients. A recent event has given that old adage a new, more tangible meaning.

Michael Louis, a patient at a Tulsa, Oklahoma, medical office, underwent spinal surgery last month. After being released on May 24, he repeatedly called the clinic to get further treatment for his lasting pain to no avail. On June 2, he targeted and killed his surgeon, Preston Phillips, before killing himself in a mass shooting.

While this story is shocking, it is not unpredictable. Doctors are often threatened by patients in immense pain after they are abruptly cut off from their opioid medications. How did we get here? 

Policy makers and health care practitioners tend to misinterpret and misapply the 2016 Centers for Disease Control and Prevention (CDC) guideline for prescribing opioids for chronic pain, taking for a mandate what was meant as a general rule of thumb. Released as a measure to combat the overdose crisis, the report recommended imposing limits on the number of opioid prescriptions doctors could provide. This led many doctors, intimidated by possible consequences, to abruptly taper patients off pain medicine that has worked to treat and control pain for years. Horror stories about doctors being arrested or having their licenses suspended have led many physicians to give up treating pain altogether, refusing to see pain patients.

Misguided drug policy has stigmatized chronic pain patients, who are often suspected of being “drug abusers.” And many doctors are just as misguided as journalists and politicians in their understanding of the pharmacology of opioids, as well as the difference between chemical dependency and addiction.

Because the government and medical boards limit surgeons’ ability to prescribe opioids, surgeons, like us, can no longer treat a patient’s complex pain using our best clinical judgment without administrative oversight. This system builds a wall between patients and their doctors, creating an adverse environment. This is not what we expected when we took the Hippocratic oath.

Up to 40 percent of spinal deformity patients have had some sort of spinal surgery in the past (performed by a spinal surgeon like Phillips or like Richard Menger, one of the authors of this article), meaning many of them are on opioids already. Recovery from these surgeries can take anywhere from three months to a year. While these patients go through a painful recovery, spine surgeons aren’t always able to treat pain in a streamlined manner; we are required to prescribe only a limited amount of opioids. Oftentimes routine refill mechanisms are not available, and patients needing refills must be seen in person or prescribed medicine via an elaborate electronic co-signing system. Patients have to either run back and forth to the office or navigate an electronic prescription process sometimes between multiple pharmacies trying to connect to the e-software. Surgeons are frustrated. The staff faces burnout. And the patients have no efficient way to relieve their pain.

Patients often blame their doctor for their untreated pain. As patients become desperate for relief, they sometimes turn to the black market if their pharmacy can’t fill the prescription in time. While lawmakers can try to regulate medication, they cannot regulate pain. Government attempts to combat the opioid crisis by reining in opioid supply and prescriptions have failed. By 2020, opioid prescription volume dropped roughly 60 percent from its peak in 2011, yet overdose rates have skyrocketed. Data collected from the CDC and the National Survey on Drug Use and Health show no association between the volume of opioid prescriptions and the nonmedical use or addiction in persons over the age of 12.

Although the reduction in opioid prescriptions has had no impact on overdose deaths from medically used opioids, the same cannot be said for opioids used nonmedically. It is now widely accepted that as the supply of relatively safe prescription drugs was slashed, nonmedical users have turned to heroin and, more recently, fentanyl, which was responsible for 87 percent of the 30,000-spike in drug overdose deaths in 2020. And fentanyl, cocaine, and methamphetamines were responsible for nearly all overdose deaths in 2021.

There is no clear definition of overprescribing. Yet policy makers keep doubling down on a misguided mission to reduce or eliminate opioid prescribing, putting patients back in miserable pain and mental anguish, driving some to suicide and others to the black market. Now, it may have driven one person to homicide.

All the while, overdoses soar among the population of nonmedical users who long ago moved on to heroin and fentanyl. Unfortunately, policy makers continue to believe the overdose crisis was caused by doctors treating their patients in pain when the real cause is drug prohibition and the dangerous black market it creates.

The post America's Failed Opioid Policy Drove the Tulsa Shooter to Violence appeared first on Reason.com.

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Slippery Slope Arguments in History: 1823


slippery

From Harrington v. Commissioners of Roads of Newberry District. (S.C. Const. Ct. App. 1823), an opinion dealing with whether a court clerk should be seen as explicitly exempted from the then-existing common duty of working on road construction:

If once the door be opened, by construction, for any officer to escape from the duties of the citizen, the lock is not opened, but the key is useless, and the bolt broken; and however narrow the first opening, there will never be wanting hands to push it wide, and those will be the hands of the strong, the sagacious, and the interested.

[H]owever narrow the first opening, there will never be wanting hands to push it wide, and those will be the hands of the strong, the sagacious, and the interested….

If the clerk were to be the only officer thus privileged, I should not greatly regard it, but the peculiar reason given for this exemption will not be regarded. The principle received, will, and must be, that an officer understood to be occupied in his official duties becomes exempt, whether it appeared by statute or common law….

[S]omething peculiar may be found in every case, and future judges will look to the principle alone, and lay aside the guards and qualifications. The people will not comprehend such subtleties. The practice of the country will be upon the general principle. Other officers will be excused and considered exempt. Some circuit decisions will be predicated upon the habit of expectations of the country.

Finally, another qualified decision will creep in, and the two will be enough to beget a race of exempts that may put at defiance the principle to which we are allowing only one harmless exemption. But these little exemptions in favor of individual privileges are as contagious as the leprosy….

A principle once surrendered in a particular case is no longer firm, but trembles at every new attack. As then, in treating of great principles, we would willingly say, “esto perpetua [let it be perpetual -EV]:”  So in resisting the first encroachments, our rule should be “obsta principiis [resist at the beginning -EV].”

“Stop innovation in its early stage,
For when the upstart thing grows strong from age,
No time, nor strength of tenets stop its rage.”

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Drag Shows for Children Under Fire in Texas


Children watching drag queen perform at a Texas gay bar.

I regret to inform you that Texas is at it again. “It” being absurd and melodramatic culture-warmongering, of course. In this latest round, Texas state Rep. Bryan Slaton is trying to ban minors from seeing drag queens, in response to a Dallas bar’s “Drag the Kids to Pride” event, which it billed as “a family friendly drag show.”

Drag shows are no place for a child. I would never take my children to a drag show and I know Speaker Dade Phelan and my Republican colleagues wouldn’t either,” Slaton tweeted on Monday. “I will be filing legislation to address this issue.”

A press release attached to Slaton’s tweet says he was moved to act “following several news stories and videos over the weekend in which underage Texas children were subjected to inappropriate sexual content by adults.”

“The events of the past weekend were horrifying and show a disturbing trend in which perverted adults are obsessed with sexualizing young children,” said Slaton.

But it sure seems like Slaton is the one who’s gratuitously sexualizing things here.

While it’s unclear exactly what “horrifying” events Slaton is responding to, many conservatives—including U.S. Rep. Marjorie Taylor Greene (R–Ga.)—were recently outraged over reports of a drag show for kids that was held at a Dallas gay bar last weekend.

The event was swarmed with protesters, despite the fact that the performers were clothed and engaging in nonsexual dancing. Some kids in attendance tipped the drag performers with dollar bills, which—despite its association with strip clubs—is not in itself a sexual thing (we hand dollars to street performers, too, don’t we?). The most risqué thing about the event was a neon sign on the bar’s wall which said “it’s not gonna lick itself”—a message that most certainly went over small children’s heads and, in any event, is no worse than things older children might see on TV.

That might all be too torrid for a lot parents—which is fine! No one has to bring their kids to a Pride week drag show. But the idea that it should be illegal is also silly, and smacks more of anti-LGBTQ prejudice than anything else. After all, we don’t see Slaton asking for kids to be banned from Hooters or other establishments with scantily clad staff and winks and nods to sexuality.

Another outrage this weekend concerned an image shared by the Babylon Bee’s Seth Dillon, who described it as “a small child — perhaps 5 or 6 — stuffs money into the underwear of a nearly naked drag queen as parents look on, smiling.”

The image was in actuality a woman performing at a burlesque brunch.

Again, some parents may still find this inappropriate. But it has nothing to do with drag queens.

Baked into all of this outrage is the idea that drag performances are always too racy for under-18-year-old eyes. But dressing in drag isn’t an overtly sexual act and while drag shows often contain sexual humor and themes, this is far from a requirement. Drag performances and events can certainly be tailored toward children or all-ages audiences (including the drag queen story hours at libraries that so riled folks up a few years back).

Social conservatives may object to their children being exposed to cross-dressing in general, but this doesn’t make drag inherently sexual and letting minors see drag performers doesn’t necessarily mean exposing them to anything lewd or lascivious. Parents are perfectly free not to take their children to events with drag performers, but parents should also be free to do so, too.


FREE MINDS

Proud Boys indicted on sedition charges. Four members of the Proud Boys and the group’s former chair, Enrique Tarrio, have been charged with seditious conspiracy for their role in the January 6 riots last year. “The men had already been charged in an earlier indictment filed in March with conspiring to obstruct the certification of the 2020 presidential election,” notes The New York Times.

The new indictment marked the second time a far-right group has been charged with seditious conspiracy in connection with the Jan. 6 attack. In January, Stewart Rhodes, the leader and founder of the far-right Oath Keepers militia, was arrested and charged along with 10 others with the same crime.

The charge of seditious conspiracy — which can be difficult to prove and carries particular legal weight as well as political overtones — requires prosecutors to show that at least two people agreed to use force to overthrow government authority or delay the execution of a U.S. law. It carries a maximum sentence of 20 years in prison.

It was not immediately clear what evidence led to the new charges, but the indictment underscored the central role played by the Proud Boys in the effort to forestall President Donald J. Trump’s defeat and “oppose the lawful transfer of presidential power by force” by storming the Capitol.

The charges come as Congress is preparing for the first public hearing on the events of January 6. “Several major networks and cable news programs are expected to carry the first hearing live in its prime-time slot,” notes the Associated Press. “The committee is also expected to live-stream it on C-SPAN and on its YouTube page.”


FREE MARKETS

The FDA prepares to crack down on almond milk. In what has to be one of the silliest—yet ongoing—government crusades of the past decade, U.S. regulators are set to end the scourge of nondairy products referring to themselves as milk. (So much eyeroll.) Reports suggest that the Food and Drug Administration (FDA) “is preparing to rule that the word ‘milk’ on labels must be confined to animal products,” reports Reason‘s Scott Shackford. “If true, this would mean that almond milk would have to go by another name and cannot be marketed in such a way to suggest that it’s similar to dairy milk.”

“It’s all part of the FDA’s silly, condescending treatment of consumers that just so happens to benefit powerful, entrenched agriculture interests using the government to attack competitors,” notes Shackford.

As nut milks and other vegan and vegetarian alternatives to animal-based products have become more popular over the past decade or so, the purveyors of milk, meat, and other animal-based products have seized on the idea that limiting the labels these products can use will somehow undercut them. As a result, we’ve seen all sorts of lawsuits, lobbying, and related government action against veggie “meat,” nut “milks,” vegan “mayo,” etc.

Of course, people tend to buy these products precisely because they are not made with animal products. Forcing them to change their labels may be burdensome and costly to their manufacturers—and temporarily confuse consumers in the short term, when their favorite almond milk is suddenly an “almond drink”—but seems unlikely to actually make a dent in the number of people trading meat and dairy for plant-based alternatives.


QUICK HITS

• The Johnny Depp/Amber Heard defamation case has serious implications for freedom of the press, notes Freddie deBoer. “Heavyhanded defamation lawsuits with multimillion-dollar judgments risk creating a powerful chilling effect that could prevent anyone (again, not just victims) from freely and forcefully telling their version of the truth in a world where we will never all agree on basic facts,” he writes.

• Bad news for (bad) plans to create a global minimum tax.

• “Over 45,000 Americans have applied to help resettle Ukrainians in the United States since the Uniting for Ukraine program began,” reports Reason‘s Fiona Harrigan.

• Angeli Gomez, the mother of two students at Robb Elementary in Uvalde, Texas, talks to the press about rushing into the school to save her children while a gunman was inside. “The entire interview is a damning indictment of law enforcement’s mishandling of the shooting,” writes Reason‘s Robby Soave, “but one new detail bears particular emphasis: According to Gomez, the police subsequently contacted her and said that the media attention she was generating for criticizing them could lead to obstruction of justice charges.”

• Continuing its track record of performative nonsense aimed at social media, Texas is investigating Twitter bots:

• Michael Lowe “spent 17 days in a New Mexico jail because American Airlines wrongfully accused and identified him to police as a shoplifter at the Dallas-Fort Worth Airport,” reports the Fort Worth Star-Telegram. Lowe is now suing American Airlines.

• British Prime Minister Boris Johnson has survived a no-confidence vote. “The vote, 211 to 148, fell short of the majority of Tory lawmakers needed to oust Mr. Johnson,” notes  The New York Times. “But it laid bare how badly his support has eroded since last year, when a scandal erupted over revelations that he and his senior aides threw parties at 10 Downing Street that violated the government’s lockdown rules.”

• A week after Georgetown University said Ilya Shapiro could resume duties at Georgetown Law following an investigation into his tweet about Supreme Court nominees, Shapiro has resigned. “It has become apparent that my remaining at Georgetown has become untenable,” he wrote in a statement.

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Court Rejects RICO and Fraud Claims Against Reputation Management Company

From Murrey v. Minc, decided Friday by Judge Analisa Torres (S.D.N.Y.):

Plaintiff pro se, Stewart Murrey, brings claims against Defendants Aaron Minc, Minc Law, Domingo J. Rivera, Rivera Law Group, PLC, PRVT L.L.C., Elizabeth Jordan, Internet Reputation Control, Anthony Will, Digital Revolution LLC, Brandyourself.com, Inc., Tom Vitolo, Christian Tyron, and John Does 1–10 for violations of the Racketeer Influenced and Corrupt Organizations Act (“RICO”); California’s unfair competition law (the “UCL”); and California’s statutory and common law right of publicity; and claims for common law fraud and civil conspiracy….

{The following facts are taken from the [Complaint], which the Court accepts as true for purposes of this motion.}

Beginning in late 2016, a series of allegedly defamatory comments about Plaintiff were posted on the website www.cheaterreport.com …, along with photographs taken from Plaintiff’s personal website, dating profiles, and social media platforms. These posts “consumed” all other search engine results for Plaintiff’s name, which “severely harm[ed] his reputation and end[ed] his ability to earn money.”  The comments on the Website ultimately led to Plaintiff’s being arrested twice, once in 2017 and once in 2018, and Plaintiff’s filing of two false arrest lawsuits, which were subsequently settled.

From 2017 to 2019, Defendants and others “solicited and received” thousands of dollars from Plaintiff to “remove online libel and rehabilitate [his] online reputation.” Plaintiff alleges that although Defendants and others represented to him that they had no connection to the Website, they were actually in cahoots with the Website, “work[ing] illegally with other individuals and business entities operating and maintaining [the Website]” and giving “kickbacks to the Website’s operators….

No dice on the RICO claim, the court held:

RICO defines [potentially actionable] “racketeering activity” as the commission of certain criminal acts under state and federal law, including wire fraud under 18 U.S.C. § 1343 and extortion under 18 U.S.C. § 1951. Here, Plaintiff’s RICO allegations are based on defamation, wire fraud, and extortion.

Because “it is firmly established that defamation … do[es] not provide the requisite predicate for RICO violations,” Plaintiff’s allegations that Defendants published defamatory statements about him cannot serve as a predicate act for his RICO claim.

Moreover, Plaintiff cannot support his RICO claim with predicate acts of wire fraud because he has not alleged wire fraud with sufficient particularity. The heightened pleading requirements of Federal Rule of Civil Procedure 9(b) apply to RICO claims predicated on fraud. Therefore, Plaintiff must “specify the time, place, speaker, and content of the alleged misrepresentations, explain how the misrepresentations were fraudulent[,] and plead those events which give rise to a strong inference that [each] defendant[ ] had an intent to defraud, knowledge of the falsity, or a reckless disregard for the truth.”

Plaintiff claims that Defendants and others (1) “intentionally flood[ed] the internet with misinformation that misdirects anyone reasonably searching for them to waste his or her time and resources and return to the state of despair that is, for those involved in this pattern of organized crimes, most profitable”; (2) intentionally misrepresented “on [their] website [and/or] to Plaintiff directly” that they “had nothing to do with,” “strongly did not like,” and “had no contact and or connections with” the Website “nor anyone and or any entity involved in operating and maintaining” the Website; (3) “intentionally concealed from Plaintiff that they would work with and transact with individuals and entities responsible for operating and maintaining the [Website] … to induce Plaintiff to pay for ‘removal services'”; and (4) failed to uphold a promise to act in “good faith” and with “due diligence.”

These allegations do not “adequately specify the statements [Plaintiff] claims were false or misleading … [or] state when and where the statements were made.” Plaintiff also does not identify the particular statements each Defendant made. Even Plaintiff’s most specific allegation, that Defendants communicated with Plaintiff “via multiple email, texts, and telephone” from February 2017 until August 2019, and “continued to intentionally misrepresent to Plaintiff that they had no connection with, much less did not support nor transact with those who host, operate and or maintain [the Website],” does not specify the fraudulent statements, which Defendant made the statement, or how each statement was made….

Finally, Plaintiff has not sufficiently alleged extortion…. Extortion is defined as the “obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.” …

Here, Plaintiff does not allege any force or violence. Instead, he appears to allege that Defendants used fear, stating that “the ‘removal business’ enterprise component of the [alleged scheme] receives payments for removals of said lethal defamations.” To the extent that Plaintiff is referring to a fear of reputational harm from allegedly defamatory statements, such a fear is insufficient to state an extortion claim under RICO. Conte v. Newsday, Inc. (E.D.N.Y. 2010).

But, Plaintiff’s claims, when construed liberally, could be seen as an attempt to allege that victims of Defendants fear the economic loss that would result from the defamatory statements. A fear of economic loss can sustain a claim for extortion if the fear is that “nonpayment would result in preclusion from or diminished opportunity for some existing or potential economic benefit.” The absence or presence of fear of economic loss “must be considered from the perspective of the victim, not the extortionist,” and the plaintiff must show “that the victim reasonably believed: first, that the defendant had the power to harm the victim, and second, that the defendant would exploit that power to the victim’s detriment.”

Plaintiff has not sufficiently alleged an economic fear. Plaintiff does not claim that Defendants prevented him from going to other brand management firms to remove the defamatory statements, or that Plaintiff feared looking elsewhere because he believed Defendants would harm him. In fact, Plaintiff claims that he was not aware that Defendants had any connection to the Website when he contracted with them and, therefore, he could not have reasonably believed that Defendants would harm him if he did not hire them. Although Plaintiff argues in his opposition brief that “[D]efendants wrongfully communicated to [P]laintiff that if he did not pay them for their ‘online reputation services,’ his life, work and ability to earn money would be forever decimated by the anonymous defamation and ever-present threat of [the Website], thus instilling fear of harm if [P]laintiff did not pay their fee and hire him,” no such threat is alleged in the [Complaint]. Therefore, Plaintiff has not sufficiently alleged extortion….

For similar reasons, the court rejected plaintiff’s state law fraud and Unfair Competition Law claims. And it held that,

Plaintiff’s claim for violation of the California right of publicity, based on the use of his name and image on posts on the Website fails as well. Claims based on the common law or statutory right of publicity require the plaintiff to show that the defendant “appropriated the plaintiff’s name or likeness for commercial purposes.” Therefore, Defendants would be liable only insofar as they personally posted about Plaintiff, and Plaintiff makes no non-conclusory allegations that Defendants did so. See [Complaint] (alleging generally, without factual support or specifying which Defendants acted, that Defendants “aggressively publish[ed] defamatory and knowingly false statements about him”).

{Although Plaintiff originally brought a claim for defamation, he retracted that claim ….}

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Slippery Slope June: Legal-Cost-Lowering Slippery Slopes


slippery

[This month, I’m serializing my 2003 Harvard Law Review article, The Mechanisms of the Slippery Slope; in last week’s posts, I laid out some examples, definitions, and general observations, and turned to a specific kind of slippery slope mechanism—cost-lowering slippery slopes. This week, I’ll elaborate on that, and shift to some other mechanisms.]

Let us briefly revisit the argument that gun registration may increase the chances of gun confiscation. Today, gun confiscation would be hard to enforce, partly because of the Fourth Amendment. Searching all homes for some or all kinds of guns would be unconstitutional, a classic impermissible general search. This, in a sense, is a cost of confiscation—not a financial cost, but a legal cost that keeps confiscation from being performed efficiently.

{The legislature might still enact a gun ban, hoping that nearly all owners will voluntarily comply, planning to rely on informers, or recognizing that the ban would only be enforced gradually, as the gun owners somehow reveal themselves—for instance, by using a gun, either defensively or offensively. But such a legislative decision will be made less likely by the difficulty of enforcement, the public distaste for reliance on informers, and the possible public hostility to punishing even illegal gun owners when their gun ownership is revealed as a result of a legitimate defensive use.}

If, however, guns are first successfully registered, and are later banned, a house-to-house search of the homes of registered owners who haven’t turned in their guns may well become constitutional. Your registration as the owner of a weapon may be seen as probable cause to believe that you have it; and one place you’re likely to be keeping it is your home. This isn’t a certainty—maybe the gun was stolen or lost, and you didn’t report this to the police, or maybe you’re keeping the gun in some other location—but a magistrate may find that it suffices for probable cause and issue a search warrant that would let the police search your home for the gun.

So gun registration (legislative decision A) would likely lead to some degree of public compliance with the registration requirement. This compliance has the legally significant effect of creating probable cause to search all registrants’ homes, once guns are banned. This legally significant effect makes it easier to enforce the gun ban—thus making it more likely that such a ban will be enacted (legislative decision B).

Again, this scenario doesn’t require us to assume that registration will be seen as morally indistinguishable from confiscation, that registration will set a precedent, or that registration will desensitize voters to confiscation. Decision A can make B more likely even if it doesn’t change a single voter’s, legislator’s, or judge’s mind about the moral propriety of gun prohibition or confiscation. Rather, the legally significant effect of registration can change the practical cost-benefit calculus surrounding prohibition, thus making prohibition more likely (though of course not certain).

{Of course, decision B might not be made even if A makes it easier; in some places, voters would oppose handgun bans even if they could be cheaply and legally enforced. But in other places, handgun bans may be popular—handguns had already largely banned in Washington, D.C. and Chicago, for instance, and there’s strong support for handgun bans in parts of the Northeast—and if gun registration makes confiscation cheaper, it may also make confiscation more likely.}

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Bad Candidates Threaten Criminal Justice Reform in California


Voting in California with state flag logo on ballot

It’s primary election day in seven states around the country as voters make preliminary choices for candidates who will run for office in November. But voters in two of California’s largest cities will face decisions regarding their local law enforcement entities that could spell trouble for the criminal justice reform movement.

In Los Angeles County, Sheriff Alex Villanueva is running for reelection in a crowded field. The Los Angeles Sheriff’s Department (LASD) has a budget of nearly $3.5 billion and over 17,000 employees—the largest sheriff’s office in the country. Villanueva won office in 2018’s “blue wave” election cycle, stressing his Latino heritage, his support for California’s “sanctuary state” law which discouraged cooperation with Immigrations and Customs Enforcement (ICE), and his desire to root out cronyism in a famously corrupt department.

Once in office, however, Villanueva backtracked on his anti-ICE pledge, and he rehired a deputy who had been fired over allegations of domestic abuse and stalking. Earlier this year, when footage leaked of a deputy with his knee on a prison inmate’s head for more than three minutes, Villanueva announced he would be launching a criminal investigation—not into the incident but into the leak.

Under Villanueva’s term, the LASD has been hostile to oversight: The department has seemingly ignored requests for bodycam footage and misconduct records filed in accordance with a 2019 California public records law. Villanueva has ignored subpoenas to testify about gangs of deputies within the department (a problem which, to be fair, goes back decades).

Despite campaigning on criminal justice reform, Villanueva has run his office more akin to a law-and-order conservative, even charging that his opponents “worship at the altar of wokeism.” Cynthia Hart of the Culver City Democratic Club, which endorsed Villanueva in 2018, told the Los Angeles Times that Villanueva “really broke our hearts… I thought he was a reformer.”

Unfortunately for reform supporters, Villanueva is favored to win: He is the only candidate, from a total of nine, with any name recognition. Los Angeles Democrats failed to coalesce around a single candidate to challenge Villanueva. And since the sheriff’s race is nonpartisan, with no party affiliations, many voters will have only names to go by.

If any candidate receives a majority of votes cast today, that person will win the race outright; if not, the top two candidates will face off in November.

Meanwhile in San Francisco, voters will decide whether to recall District Attorney Chesa Boudin. Supporters of the recall effort charge that Boudin “has the wrong priorities,” and that crime is up since he entered office in January 2020. Boudin retorts that the recall is “a Republican-led operation,” though polling earlier this spring showed nearly two-thirds of Democrats support his removal.

Boudin’s leftist credentials extend back to birth: His biological parents, David Gilbert and Kathy Boudin, were members of the violent anti-war activist group, the Weather Underground. When both were arrested after a botched armored truck robbery killed three people, Boudin was raised nearly from infancy by two fellow Weather Underground members: Bill Ayers, the unapologetic erstwhile bomber, and Bernardine Dohrn. In adulthood, he worked as a translator for Hugo Chavez, the autocratic president of Venezuela, later defending him against accusations of authoritarianism.

In 2019, Boudin ran for office on a progressive platform of criminal justice reform. He pledged to “end mass incarceration,” to “eliminate cash bail,” and not to prosecute “quality-of-life crimes,” such as consensual sex work, “public camping,” and “public urination.” The San Francisco Libertarian Party endorsed Boudin on the strength of his promises.

Under Boudin, rates of homicide, gun violence, and car theft increased after falling in previous years. Last fall, San Francisco was one of a handful of U.S. cities to experience a spate of smash-and-grab robberies. Of course, crime across the country has risen since the beginning of the COVID-19 pandemic, and it is entirely possible that San Francisco’s rates are not out of the ordinary. A San Francisco Chronicle investigation comparing 2022 numbers to the previous four years found that “reported crime data does not clearly show a trend toward worsening public safety.”

But Boudin still faces recall and for perhaps a completely mundane reason: He may simply be bad at the job.

In the first two years of his tenure, nearly half of the prosecutors working under him left. Some, including fellow progressive prosecutors, have since publicly criticized Boudin’s management of the office. Despite saying that his “top priority” was “supporting victims and survivors,” advocates in the D.A.’s Victim Services Division, which keeps victims apprised of the status of their cases and helps enable them to speak at sentencing hearings, complain that their office is being deprioritized.

Villanueva and Boudin may have little in common, but they each spell trouble for criminal justice reform in California’s cities. Boudin supporters worry that a successful recall effort could undermine the cause and even imperil other reform-minded prosecutors across the country. At the same time, a successful Villanueva reelection could send the message that punitively regressive policing is good politics. Either way spells more aggressive prosecution, which poses a threat to innocent and low-income defendants.

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Globalization Is Alive, Well, and Changing


Global business is still very much global.

Free trade is under greater attack today than it has been in decades, especially in the United States. Despite continued public support for foreign trade and globalization generally (even during the height of the COVID-19 pandemic), a bipartisan cadre of American politicians and pundits is increasingly skeptical of, or downright hostile to, the longstanding consensus in favor of trade liberalization. The U.S. government, moreover, increasingly prioritizes national security, economic “resilience,” and the people and communities allegedly left behind by our modern and globalized world. The Biden administration’s reluctance to remove former President Donald Trump’s tariffs or to pursue new trade agreements has, along with pandemic-related supply chain snarls and Russia’s invasion of Ukraine, signaled to many that an era of de-globalization is upon us.

Yet, even as its justifications and the global economy change, the current skepticism toward free trade and globalization remains misguided. Academic literature and recent events continue to provide strong economic, geopolitical, and moral support for free trade and the multilateral trading system. There is also little concrete sign that the world—so far, at least—is really de-globalizing, though trade and supply chains, as well as the rules under which they operate, are changing.

Put simply, the death of globalization is greatly exaggerated.

The Criticisms

Today’s criticisms of trade and globalization fall into three general categories. From an economic perspective, critics contend that decades of “unfettered free trade” are responsible for widespread “deindustrialization” in the United States and, by extension, increased job loss, depressed family formation, and the erosion of industrial towns, particularly in the Rust Belt. The most common target is U.S. trade with China—in particular, the 2000 U.S. law that granted China permanent normal trade relations and ushered the country into the World Trade Organization (WTO) in 2001. This supposedly drove the now-famous “China Shock” period between 1999 and 2011 during which a sizable increase in Chinese imports caused, according to various economists, the loss of millions of American jobs and associated social ills. Others claim that the U.S. trade deficit—not only with China—is responsible for similar harms since the 1990s, and that globalization’s theoretical benefits supposedly fail to match its reality while destroying the lives of millions of American workers and their communities.

Second, critics increasingly claim that international trade has undermined U.S. national security by not only crippling the country’s industrial base but also making it dependent on foreign nations, especially potential adversaries, for critical goods. Thus, protectionism and industrial policy are needed to re-shore essential industries not on economic grounds but geopolitical ones. Here again, China looms large, as critics not only blame China’s economic rise on U.S. trade policy but also use it to justify trade and investment restrictions on key sectors (like pharmaceuticals or semiconductors) and a broader “decoupling” of the U.S. and Chinese economies. Recent events in Russia and Ukraine supposedly reinforce these concerns. 

Finally, there are criticisms based on morality, particularly from self-declared pro-worker populists on the left and (increasingly) the right who claim that globalization sacrifices the common man and vulnerable communities on the altar of economic efficiency and gross domestic product, delivering diffuse benefits to educated, urbanite globalists at the concentrated expense of real Americans. The elites get iPhones, Netflix, and knowledge jobs, they claim, while the working class gets a life of joblessness, government dependency, or worse.

The Reality

In each of these criticisms, there is a nugget of truth, but they remain overwhelmed by the reasons to support free trade and oppose protectionism.

The Economic Case

It’s undoubtedly true that international trade, like all forms of market competition, disrupts some American companies and workers that, through government protection, formerly had the U.S. market to themselves. However, the economic case for free trade remains rock solid. American consumers (who are also American workers, by the way) gain from new access to goods and services at lower prices and in greater varieties. These gains come not only from foreign-made items but also from similar domestic ones that are now forced to compete with imports on price and quality. Studies show that trade’s “consumer surplus” is far more significant than a few cents on the proverbial cheap Tshirt. Recently, for example, several economists have found that falling prices caused by Chinese imports into the United States during the 2000s generated hundreds of thousands of dollars in consumer benefits for each American job potentially displaced by the China Shock—the equivalent of giving every American “$260 in extra spending per year for the rest of their lives.” Similar gains occur outside the United States: European consumers, for example, save €60 billion per year (about $64 billion) from lower tariffs resulting from the European Union’s entry into the WTO. Studies also uniformly find that these benefits—again contrary to the conventional wisdom—tend to disproportionately aid the poor and the middle class, who have tighter budgets and concentrate their spending on tradable sectors like food, clothing, footwear, and consumer electronics.

The consumer gains from trade are a big reason why Americans today work far fewer hours to own more and better essentials than at any prior time in history. Dartmouth economist Bruce Sacerdote finds that lower-income Americans’ overall consumption (adjusted for inflation) increased by 62 percent to 164 percent between 1960 and 2015, not fully accounting for improvements in quality. In other words, poorer Americans today can consume about twice as many goods and services as their 1960 counterparts, and expanded international trade is undeniably a big reason why.

Additionally, domestic companies and farmers gain financially from exporting their products: Total exports of goods and services hit almost $2.5 trillion in 2019, and the United States was the world’s second-largest goods exporter and largest services exporter that same year. Firms also benefit from imports, either by moving and selling foreign-made items in the United States or by using them to produce other things. Indeed, the total value added to wholesale trade, retail trade, and transportation and warehousing was more than $3.1 trillion in 2019—output that in many cases (e.g., Gap or FedEx) wouldn’t exist but for global trade. Foreign-made inputs and equipment, moreover, boost American manufacturers’ global competitiveness and constitute about half of all goods imported into the United States. The best testaments to these benefits are the thoroughly documented harms that Trump-era tariffs on steel and aluminum inflicted on American manufacturing investment, output, and jobs.

American companies also gain from foreign direct investment—dollars that overseas companies acquired by selling stuff to U.S. consumers and then injected back into the U.S. economy. Foreign investments in U.S.-based companies (e.g., BMW in South Carolina) generated $5 trillion in sales and $1.1 trillion in value-added—the affiliates’ direct contribution to GDP—in 2019, and these same firms conducted more than $71 billion in research and development (mostly in manufacturing) that same year. Research also shows that foreign ownership benefits not only U.S.-based affiliates—via increased capital spending, new production or management techniques, or better supplier networks—but also their surrounding communities and neighboring companies. Anyone still doubting such benefits can drive down Interstate 85 from Charlotte, North Carolina, to Montgomery, Alabama, to check out the multinational factories and bustling towns firsthand.

The “corporate” gains from trade inevitably benefit American workers. For example, a 2020 report found that trade directly or indirectly supported approximately 40.6 million jobs. New research also finds that, while only 6 percent of U.S. firms in manufacturing and services are goods traders, these firms account for half of the economy-wide employment today and 60 percent of all new net jobs created after 2008, primarily through the establishment of new businesses. Meanwhile, foreign-owned affiliates in the United States employed almost 8 million Americans in 2019, typically at higher wages than similarly situated workers at U.S.-based competitors.

Trade also has allowed American companies and workers to focus on their comparative advantages in capital-intensive manufacturing and skilled services. The increased prominence of these jobs in the American economy has enabled a transition from manual, inefficient, and even dangerous low-skill jobs to generally safer, more productive, and better-paying ones. A job transporting that cheap T-shirt (e.g., working at Amazon) now pays better, and is more promising, than the job making it.

In general, increased imports into the United States between 1994 and 2019 have coincided with gains in domestic output, employment, and real (median) wages. That same period also saw an increase in the share of American households making more than $100,000 (from 23.8 percent to 34.3 percent) and declines in the shares of middle-income (44.6 percent to 40.3 percent) or low-income (31.8 percent to 25.5 percent) households. In other words, during the hyperglobalization era, the American middle class shrunk because households got richer.

Free trade is also integral to the “creative destruction”—that is, the constant replacement of old firms, jobs, and products with new ones—that raises our living standards. While much of this activity is imperceptible, it is doubtlessly driven by consumers and capital seeking more productive ends in the global marketplace. International competition, for example, has long pushed American companies, such as the Big Three automakers in the 1980s, to improve their products or go out of business. And the money Americans save by buying cheap foreign goods is often spent on, or invested in, promising domestic companies and their higher-skilled workers. The outcome of these unseen transactions is not just “cheaper stuff” but better and once-unimaginable goods, better jobs, better companies, and better lives.

Quantifying the overall benefits of trade is exceedingly complicated and uncertain, but economic studies uniformly show substantial gains. For example, a 2017 Peterson Institute for International Economics study calculated the payoff to the United States from globalization between 1950 and 2016 to be $2.1 trillion ($2.4 trillion in 2021 dollars), increasing GDP per capita and per household by around $7,000 and $18,000 ($7,900 and $20,400 in 2021 dollars), respectively. These benefits, again, accrue disproportionately to households in the bottom income decile.

This does not mean, of course, that all is perfectly fine in the modern American economy. However, the convenient narrative that “globalization” is the primary driver of the nation’s most commonly cited economic challenges is misguided. For example, the decline in American manufacturing jobs began decades before imports were little more than a rounding error in the U.S. economy—in 1979 in nominal terms or the mid-1940s as a share of the workforce. These declines are also shared by other advanced economies (including ones with trade surpluses like Germany and Japan) and many emerging markets like China—which shed almost 18 million industrial jobs in 2012–19. In reality, the decline in U.S. manufacturing employment reflects broader, global trends (e.g., productivity gains and changing consumption patterns), not the “American carnage” decried by Trump at his inauguration. It also reflects a shift in worker preferences away from manufacturing; job openings in the sector have averaged more than 850,000 since mid-2021, and manufacturers consistently point to a lack of workers as their biggest impediment, even after offering generous pay raises and signing bonuses.

Other trends also defy the anti-globalization narrative. Male wage stagnation, for example, actually ended before the United States entered the North American Free Trade Agreement (NAFTA) in 1994 and the WTO in 1995, and those wages generally increased thereafter. Male labor force participation, meanwhile, has consistently declined since the 1950s. And despite ample job openings and significant pay increases, only a small fraction of non-working, prime-age men today report an interest in getting a job. Troubling trends in marriage and family formation (such as the share of children living with married or cohabiting parents) ceased in the early 1990s and either stabilized or reversed course thereafter. (The troublesome 1980s, by the way, also featured far more U.S. industrial policy, far less global integration, and dozens of competitor countries still foundering under communism or socialism.) Meanwhile, the vast majority of older industrial cities in the United States—the ones most vulnerable to foreign competition—have long since recovered and moved on. That a few remain in dire straits thus speaks less to national trade policy and more to those specific towns, as well as state or local policies that might inhibit adjustment and growth. 

And the supply chain crisis? Another miss. For starters, multinational corporations and consumers have been adjusting their practices—diversifying suppliers, building inventories, investing in new capacity, altering spending patterns—since COVID first hit. Keeping trade and investment lanes free from government interference helps facilitate this adjustment. Just as important, there’s scant evidence that reshoring supply chains would help the country withstand future economic shocks. Two recent studies (one from the OECD and another from German research network CESifo) found, for example, that an economic shock abroad would hit a “decoupled” U.S. economy just about as hard (in terms of stability or welfare) as our current, globally integrated one. Any meager benefits, moreover, would come with major costs: Insulation from foreign shocks makes a nation more susceptible to domestic shocks (say, a freak ice storm in Texas) and intensifies any resulting pain because local supply chains adapt more slowly than global ones.

Studies also show that moving toward a more localized U.S. economy would reduce economic efficiency and thus increase prices while reducing output. In reality, most supply chain problems have little to do with trade policy and a lot to do with the pandemic and misguided U.S. policies—stimulus checks, tariffs, zoning, environmental regulations, immigration restrictions, etc.—that overheated demand or restricted raw materials, labor, transportation, and construction.

The baby formula crisis provides a timely, albeit terrible, example of these economic realities. Decades of tariff and nontariff (FDA) barriers effectively walled off the U.S. formula market from foreign competition: According to the White House, 98 percent of all formula consumed here is made here. These and other trade restrictions, combined with government welfare contracts that encouraged domestic industry concentration, created a brittle system that crumbled in the face of a serious domestic shock (the Abbott recall and plant closure) and struggled to recover thereafter. Now the Biden administration’s solution to the crisis is to fly in formula from abroad—formula that was seized at the border only a few weeks ago. 

Other products dominated by domestic production, such as pickup trucks, also suffered from pandemic-related supply chain problems in 2020–21, as much as their “globalized” counterparts, if not more so. The lesson in each case is the same: protectionism doesn’t improve economic resilience—it usually makes things worse.

Even the damage attributed to the 1999–2011 China Shock has been wildly oversold. Along with the aforementioned consumer benefits from Chinese imports, numerous studies completed since that period reveal fewer American jobs were lost than the 2.4 million often claimed; substantial employment gains in services and export-oriented industries; and net economic benefits for the U.S. manufacturing sector and the country as a whole (about 96 percent of all U.S. workers came out ahead). Even if one were to treat the China Shock as economic gospel, moreover, perspective is sorely needed: The total American jobs lost due to the 11-year China Shock are less than half of the approximately 5 million job separations that occur each month in a healthy U.S. economy, and the 1 million lost manufacturing jobs would constitute less than 20 percent of all such losses (and less than 5 percent of all job losses) over the same period.

Recent analyses also show that low-skill manufacturing employment and “late stage” industries with routine, standardized processes likely would have suffered the same fate in the last two decades, regardless of the China Shock, due to competition from other developing countries and non-trade issues such as automation. In fact, data show that from 1990 to 2017, Chinese imports replaced other imports (particularly those from Asia), not domestic production and that this trend reversed—lower Chinese imports and greater imports from Vietnam, Mexico, and elsewhere—when Trump’s China tariffs were implemented.

These numbers answer a question that economic nationalists and China hawks rarely ask: What would have happened without the China Shock? They indicate that Chinese import restrictions would not have saved most of the American manufacturing jobs destroyed between 1999 and 2011—those jobs would have simply been lost due to other things, including technology and non-China imports. (Indeed, that’s just what happened when President Barack Obama slapped 35 percent tariffs on Chinese tires back in 2009.) Economists have long understood that adjustment to economic shocks—whether due to trade, technology, pandemics, or whatever—is never easy, but there’s nothing about the China Shock, which ended a decade ago, so novel or harmful as to justify abandoning a century of scholarship and experience on the overall benefits of free trade.

Finally, the last few years have forced us to re-learn about the failures of the only alternative to free trade, protectionism. Studies show, for example, that American consumers, both companies and individuals, bore most of the burden of the Trump administration’s tariffs on home appliances, solar panels, steel, aluminum, and Chinese-origin goods. Downstream manufacturing firms have been forced to pay higher prices for metals than their global counterparts, thus costing them sales and jobs; exporters (farmers and manufacturers) have lost competitiveness due to higher input costs and foreign retaliation; and investment has suffered due to uncertainty surrounding American and global trade policy. The tariffs also failed to achieve their objectives. Global steel overcapacity, for example, remains a problem; there’s been no revival of domestic solar panel production; Chinese economic malfeasance has actually increased (likely in response to U.S. tariffs and sanctions); and Beijing’s hardline stances on human rights, free speech, the South China Sea, and other issues have deteriorated further.

Engagement thus remains the worst trade policy—except for all the others that have been tried.

The Geopolitical Case

The multilateral trading system arose in the second half of the 20th century, not only from a desire for global economic growth or to empower global consumers but mainly from a fear that the division of the world into competing economic blocs could again fuel global military conflict. Fresh out of two world wars that began, in part, due to trade conflicts, the founders of the General Agreement on Tariffs and Trade (GATT) believed that countries that traded with each other (and thus had access to an institutionalized means for resolving commercial disputes) would be less prone to engaging in geopolitical competition or armed conflict with each other. And this system, for all its fits and starts, has met this aim reasonably well for over seven decades: The GATT and its successor, the WTO, have provided an avenue for the peaceful resolution of trade disputes and for countries to commit to a series of rules and economic reforms, mainly as a prerequisite for accession to the organization, that increase global interdependence and make bilateral disputes less likely to emerge. Even China signed on to the rules and undertook reforms, with subsequent backsliding more a failure of WTO members’ enforcement efforts than of the rules themselves.

Numerous studies have also found that increased trade leads to fewer armed conflicts among states—a core national security objective. As countries trade more with each other or become more exposed to each other’s growth, they are less prone to engage in conflict, and they often form deeper alliances. These security benefits are driven by several factors. First, trade makes countries more economically interdependent, thus making future conflict more costly. Second, trade and bargaining are more cost-effective ways of resolving disputes and obtaining foreign resources. Third, trade increases material prosperity and promotes mutual tolerance and understanding. And fourth, trade can limit the power of domestic constituencies that benefit from armed conflict. 

Russia’s invasion of Ukraine does little to undermine these points, and in some ways, it enhances them. Neither the academic literature nor all but the most overzealous pundits claim that trade prevents armed conflict, but that it simply makes interstate violence less likely. The Russia-Ukraine clash may therefore be considered an exception to a decadeslong decline in wars between trading partners and deaths from cross-border conflict. Vladimir Putin’s “Fortress Russia” strategy, moreover, worked to reduce Russian engagement abroad so that the nation could withstand economic blowback resulting from its foreign aggression. Prior to the Ukraine invasion, in fact, Russia was relatively isolated economically, sporting a trade/GDP ratio well below the global average.

Yet public and private sanctions still inflicted immense economic pain on the Russian economy, while “globalized” smartphones, VPNs, and social media thwarted Putin’s propaganda machine. Governments could pursue financial sanctions because of Russia’s continued reliance on the U.S. dollar—currency obtained due to international trade. These and related events might also serve as a warning to other illiberal countries with extraterritorial ambitions, especially those like China which are far more integrated into the global economy. According to numerous reports, Beijing’s hesitancy to fully embrace Russia during the Ukraine conflict stems from concerns about the repercussions for a globalized China, which has already suffered sustained capital outflows since Putin invaded. Thus, isolating China economically might make future conflict in Taiwan or elsewhere more likely, not less.

Finally, allowing developing countries access to the U.S. market can decrease the appeal and perceived benefits of joining terrorist organizations and networks because it demonstrably produces not only economic growth but also better opportunities and improved standards of living in impoverished regions. These benefits are particularly important for developed countries at risk of bordering states’ poverty or instability spilling into their territories through increased migration or refugee flows. The easiest way to slow migration from poorer Latin American countries to the United States is to make potential migrants wealthier at home via trade.

The Moral Case

As Adam Smith wrote in The Wealth of Nations, “Man is an animal that bargains.” Humans are unique in our ability to peacefully exchange goods and services to meet our needs. For millennia, we have built cultures, societies, and systems around the principle of voluntary trade. In doing so, we have come to act naturally as equals—even though we may be of different ages, genders, nationalities, races, or religions. When individuals can freely pursue their self-interest through trade, obtaining value by providing value, the “invisible hand” yields economic and social outcomes that benefit society at large.

Intended or not, American trade liberalization has removed many of the political barriers that thwart these voluntary, beneficial human interactions and the many inequities that prevailed in the previous, more protectionist U.S. system. Trade restrictions have long propped up certain politically powerful U.S. workers and industries (in steel, sugar, textiles, etc.) via hidden, regressive taxes on all other Americans, making the country poorer overall in the process. And it is immoral for the government not only to prioritize the protected groups’ well-being above that of other Americans but to do so at the latter’s direct expense. Removing tariffs might create pains for formerly-protected workers and companies now competing for their neighbors’ once-captive dollars, but moral claims based on that disruption ignore that the protection itself never should have been there in the first place.

The morality of trade doesn’t stop at the water’s edge either: The lowering of U.S. trade barriers, along with American leadership forming agreements and participating in trade institutions such as the WTO, has produced immeasurable benefits for the world’s poorest people. The International Labour Organization reports that between 1993 and 2018, for example, the share of working individuals in low- and middle-income countries living in extreme poverty (less than $1.90 a day, in purchasing power parity terms) fell from 41.7 percent to 9.8 percent—a decline of about 550 million people. Other studies show that trade helps these workers not only consume more but also move from subsistence and informal activities to formal wage or salary work. Child labor is disappearing too: The overall number of child workers (ages 5–17) decreased by approximately 38 percent, or 94 million, between 2000 and 2016—benefits especially important for women and girls who were once simply married off (or worse).

Globalization Isn’t Going Anywhere

Fortunately, rumors of globalization’s demise have been, yet again, greatly exaggerated. The share of global GDP of the goods trade was down in 2020 from its 2008 peak, yet it was still historically high—well above levels seen during the supposed hyperglobalization heyday of the 1990s and right around where it was in 2016. This widely-cited figure, moreover, is a lousy indicator of what’s really going on in the global economy. For starters, goods trade was destined to slow eventually (some goods aren’t amenable to long-distance shipping and multinational production) as more economies moved from manufacturing into services (many of which are, like construction, nontradeable). Furthermore, the supposedly retrenching U.S. saw inflation-adjusted merchandise trade (imports plus exports) reach record levels in 2021. Global trade also hit a record high last year, as did trade in industrial inputs (a sign of companies’ use of global value chains). And both the Panama and Suez canals saw record traffic, with the latter being expanded to handle even more cargo in the future.

Even more importantly, goods trade is only one part of the globalization story. Most obviously, global trade in services continued to increase before the pandemic and is now expanding again as countries reopen. The key here is the explosion in digital trade—the cross-border delivery and consumption of both “information and communication technology” products (smartphones, software, etc.) and traditional services enabled by those same technologies (legal advice, research and development, online education, etc.). Monthly global data traffic is expected to more than triple (from 230 exabytes to 780 exabytes) between 2020 and 2026, and international bandwidth—the best measure of cross-border data flows—saw 30 percent increases in both 2020 and 2021 (with much more on tap). Quantifying digital trade is difficult because traditional statistics have a hard time capturing the origins, volume, and value of these transactions. Nevertheless, back-of-napkin estimates reveal trillions of dollars in unseen economic activity.

Other aspects of globalization, such as international migration and capital flows, also remain at historically high levels. Countries continue to sign trade agreements, such as the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (formerly the Trans-Pacific Partnership), the larger (but less ambitious) Regional Comprehensive Economic Partnership, and the 54-nation African Continental Free Trade Area. And “cultural globalization” continues apace: Foreign cuisines are so commonplace in America that grocers struggle to stuff them all in the “ethnic” aisle; Puerto Rico’s Bad Bunny topped Spotify’s charts rapping in Spanish; and the most-watched show on Netflix last year was in Korean. If the world is “de-globalizing,” it has a weird way of showing it.

Finally, the pandemic and Russia have surely caused multinationals to rethink their supply chains, but this is far more re-globalization than de-globalization. American companies, for example, have shifted some operations out of China mainly to Southeast Asia or Mexico, not back home. Declines in Russian or Ukrainian commodities, moreover, have pushed international buyers to turn not inward but to Canada, South Africa, Latin America, the United States, and India. Inventory and related systems have also been overhauled (less “just-in-time” and more “just-in-case”), and the market is booming for supply chain and logistics technologies that let multinationals better track shipments and processes.

In short, global business is still very much global. It’s just different from what it was a few years ago. And it’ll be different again in a few more.

Free trade certainly isn’t painless, but its disruptions do not outweigh its tremendous economic benefits for both the country and the world. Such pains cannot obscure trade’s geopolitical importance and fundamental morality, as well as the inefficacy of the lone alternative to free trade, protectionism. The challenges created by seismic shifts in industrial production, the rise of China, and even a once-in-a-lifetime pandemic are some of the most difficult of our time, and the solutions are neither clear nor easy. But a rejection of free trade wouldn’t benefit the United States or correct its problems; it would probably make things worse.

Globalization will continue to grow with or without the U.S. government’s endorsement. It would be far better for American policymakers to join in than to embrace economic isolation.

The post Globalization Is Alive, Well, and Changing appeared first on Reason.com.

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