Tag: news

The economic toll of COVID-19 has left state governments short on revenue, prompting policymakers to mull tax increases and hope like hell for another federal bailout. At the same time, the pandemic has done nothing to reduce states’ longer-term needs for funding their pension systems, servicing their debts, and maintaining infrastructure.

One possible way to strengthen states’ balance sheets would be to lease state-owned toll roads to investors, who could offer a near-term infusion of cash in exchange for the right to collect the tolls currently being paid to state tolling agencies.

“Despite the pandemic and recession, car usage is nearly back to normal levels in many areas,” says Robert Poole, director of transportation at the Reason Foundation (which publishes this website). “There continues to be great interest in long-term investing in U.S. toll roads. With today’s low interest rates, these types of acquisitions are still attractive to global toll road companies, infrastructure investment funds, and pension funds.”

A new Reason Foundation study authored by Poole looks at nine major state-owned and -operated toll road systems. It finds that long-term leases of these roads could bring in anywhere from $1.1 billion (in Kansas) to $19.4 billion (in Illinois).

The pandemic has created both dangers and opportunities for toll road investors. Early in the crisis, declining traffic volumes saw Moody’s downgrade the expected bond ratings of several European toll roads from stable to negative. In other words, they anticipate that those bond ratings will fall in the future.

The easing of lockdown orders, and the rebound in vehicular travel, have seen Moody’s rate the outlook for other toll roads’ bond ratings as stable. Pension funds and private toll road operators have also either increased their investment in toll road leases or expressed a willingness to do so in the near future. Low interest rates and the financial distress of current toll road operators make this a good time to invest, according to the Reason study.

States are facing a collective $500 billion budget shortfall over the next two fiscal years, according to an analysis from Moody’s Analytics. The Coronavirus Aid, Relief, and Economic Security Act, passed in March, created a $150 billion relief fund that states, territories, and localities could tap to pay for increased expenses related to the pandemic.

Democrats have proposed an additional $1 trillion in bailout funds for states and localities. Republicans say they’d like to keep the additional aid to $150 billion.

Often investors will make an upfront lump-sum payment to governments for a toll road lease. Using that one-time windfall to plug short-term budget gaps would be unwise, the Reason study argues. It could avert some of the short-term cuts to programs and staff, but it would do nothing to alleviate states’ longer-term obligations while leaving them without the toll revenues they could normally expect.

Instead, Poole recommends that states use that money to pay down longer-term liabilities, particularly unfunded pension obligations.

Most state pension systems were already underfunded before the crisis. The pandemic hasn’t helped matters. “With some investment returns likely declining by as much as 15 percent this year, thanks to the COVID-19 pandemic, states are going to face a cumulative pension debt of between $1.5 trillion and $2 trillion by the end of the year,” wrote Reason‘s Eric Boehm in April.

Leasing state-owned toll roads could cover anywhere from a paltry 5 percent of unfunded pension liabilities, in the case of Ohio, to around half of Florida and Oklahoma’s unfunded pension obligations.

Pensions aren’t the only way states could use the proceeds from leasing toll roads to improve their balance sheets. Chicago used the money it earned from leasing out its Skyway toll road to pay down debt. When Indiana leased its toll road system, it used the proceeds to pay for infrastructure improvements.

In addition to putting states’ balance sheets in better shape, leasing toll roads to private operators could ensure these roads are managed more professionally. Leasing contracts can include specific performance targets and a state of repair that toll road operators have to meet. Private management would also guard against the politicization that often befalls state tolling agencies.

Leasing of toll roads to private operators is a common practice in Europe, Asia, Latin America, and Australia. But so far, the U.S. has been pretty resistant to this trend.

The coronavirus pandemic has upended all manner of senseless regulations and ways of doing business. Perhaps it offers an opportunity to improve how we manage our roadways too.

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I saw and liked her post on Prawfsblawg about this, and she graciously agreed to let me reprint it here:

Nicholas Sandmann settled his defamation action against the Washington Post this week, and he is not done yet.

Sandmann’s defamation suits arose after several media outlets caricatured him as a smirking racist based on a video clip of him wearing a Make America Great Again hat and watching a Native American man beating a drum amidst a chaotic crowd at the Lincoln Memorial. The video clip went viral after it was posted by someone at the scene, and the media picked it up for repetition and commentary. Their spin on Sandman’s supposed smirk was supported by statements from Nathan Phillips, the Native American man at the scene. The viral video spurred viral outrage.

The problem was that the video as a whole, which was readily available, tended to dispel the narrative gleaned from the clip of Sandmann and Phillips. Viewing the video as a whole, Sandmann did not appear to be in a confrontational posture vis-a-vis the Native American man or others at the scene but instead seemed to be in the posture of an awkward teenager watching a curious scene with his peers as a group of Black Hebrew Israelites hurled insults and invective at them.

Sandmann was fortunate to procure the counsel of famed attorney L. Lin Wood, who filed defamation suits against ABC News,  NBC News, CBS News, the New York Times, Gannett, Twitter, and Rolling Stone; having already settled with CNN and the Washington Post, Sandmann is still seeking damages in the aggregate of over $750 million, and he has threatened additional lawsuits.

As a lawyer, I hesitate to put too much significance on any case before it has made its way into a published appellate opinion. Until then, it may very well be an anomaly. This case has drawn extensive publicity and partisan commentary because it has come to represent a strike against the perceived arrogance and bias of the mainstream media and the slipshod investigative habits old and new media actors employ in the digital era.

On its face, the video clip of Sandmann, together with statements made by the Native American man at the scene, seemed to confirm what many liberal partisans seem to believe: Anyone who wears a MAGA hat must be a heartless white supremacist. It is clear that many media outlets took the clip on its face and republished it and drew conclusions from it without watching the whole video, which became readily available at a rarely early juncture in the whole controversy.

Conservative partisans have attributed the media’s rush to judgment to bias at a minimum and possibly malice, but it is just as likely to be a result of laziness and a desire not to fall behind digital competitors. Regardless, Sandmann’s settlements have led some to call for more defamation lawsuits to hold media accountable (and may be part of a larger trend of plaintiffs using defamation suits strategically as vehicles for political messages, but that’s a story for another day, Devin Nunes).

The partisan lenses through which the Sandmann cases are being refracted obscure the interesting legal questions the cases raise. One important question is about what’s required to prove actual malice in this case, but another is this: under what conditions does a person who “goes viral” by being in the wrong place at the wrong time become a public figure for purposes of defamation law, and does it matter if that person is a child?

The distinction between public figures and private figures is crucial in defamation law, because private figures can recover for defamation by proving the defendant published a defamatory falsehood about them negligently, but public figures must prove actual malice, that is, that the defendant published the defamatory falsehood knowingly or with reckless disregard of the truth. (Actual malice is a term of art not to be confused with common law malice). Sandmann’s cases become much harder to win if he is a public figure and must prove actual malice, although he may choose to prove actual malice even if he is deemed a private figure, because doing so gives him access to larger damages awards.

Some commentators have suggested that Sandmann should be treated as a limited-purpose public figure because he became embroiled in an event that was clearly of public concern at the site of the Lincoln Memorial. The Supreme Court’s cases defining the category of limited-purpose public figures predate social media, but they do involve people who were thrust into larger controversies by the press or partisans; in general, they suggest that becoming a limited-purpose public figure requires a plaintiff to do something more than being in the wrong place at the wrong time and thus becoming fodder for public controversy.

For example, in Time Inc. v. Firestone, five Supreme Court justices concluded that a woman married into a prominent family did not become a public figure simply by seeking a divorce through the judicial process. In Wolston v. Reader’s Digest Ass’n, the Court held that a man who had previously been convicted of contempt for refusing to respond to a grand jury investigation on mental health grounds was not a public figure. And in Hutchinson v. Proxmire, a research scientist applying for a federal grant was not public figure, either.

Extrapolating from the Supreme Court cases, plaintiff should not be treated as a limited-purpose public figure because others embroil him in a public controversy of their creation: his entrance into the controversy must involve some degree of volition. The absence of meaningful volition is bolstered by the fact he was a minor on a school field trip standing on the steps of a public monument when he went viral.

Even examining Sandmann’s actions through the lens of the multiple factors indicating limited-purpose public figure status elucidated by lower courts, Sandmann arguably did not do “enough” to be treated as a limited-purpose public figure. The factors lower courts look to often include whether (1) the plaintiff has access to channels of effective communication; (2) the plaintiff voluntarily assumed a role of special prominence in the public controversy; (3) the plaintiff sought to influence the resolution or outcome of the controversy; (4) the controversy existed prior to the publication of the defamatory statement; and (5) the plaintiff retained public figure status at the time of the alleged defamation. Sandmann apparently did nothing to ask for the infamy that attached to him based on the publication and misinterpretation of the viral video clip (and likely spurred at least in part by his hat). He did, however, gain access to the media after the fact to rebut any allegedly defamatory falsehoods. For some courts, this might be enough to tip Sandmann into the limited-purpose public figure category (see, for example, Gilmore v. Jones, 370 F. Supp. 3d 630 (E.D. Va. 2019), though that conclusion would not be faithful to the parameters of the category defined by the Supreme Court.

A better, though still problematic, argument is that Sandmann and other “victims” of viral videos like him are involuntary public figures. This category comes from dicta in the Supreme Court’s 1974 case, Gertz v.Robert Welch, in which the Supreme Court speculated: “Hypothetically it may be possible for someone to become a public figure through no purposeful action of his own.”  The Supreme Court has left the definition of the category to the lower courts, which have not reached consensus on how to define involuntary public figures and, indeed, whether the category even continues to exist.  (Cf., e.g., Clyburn v. News World Communications, Inc., 1990; Marcone v. Penthouse Int’l Magazine, 1985; Schultz v. Readers Digest Ass’n, 1979)

One approach is represented by Dameron v. Washington Magazine, Inc, 779 F.2d 736 (D.C. Cir. 1985).  A plane crashed when Dameron was the sole air-traffic controller on duty, although subsequent investigations absolved him of any blame for the crash.  Eight years later, however, a magazine article attributed the crash to controller error.  The District of Columbia Circuit Court of Appeals held that Dameron was an involuntary public figure for purposes of discussion of the crash, and therefore his libel action failed for lack of proof of actual malice on the part of the magazine. The D.C. Circuit concluded that even though Dameron had taken no voluntary actions,  “[t]here was indisputably a public controversy” in which “Dameron played a central role.”  Thus, the court concluded that a person may become an public figure simply by being in the wrong place at the wrong time.

The US Court of Appeals for the Fourth Circuit took issue with this approach in Wells v. Liddy on the grounds that it “rest[s] involuntary public figure status upon ‘sheer bad luck.'”  According to the Fourth Circuit, the relevant factors in determining involuntary public figure status are (1) whether the allegedly defamatory statement arose in the context of a discussion of a “significant public controversy” in which the plaintiff was a “central figure,” and (2) whether the plaintiff “assumed the risk of publicity.”  A plaintiff assumes the risk of publicity by “pursu[ing] a course of conduct from which it was reasonably foreseeable, at the time of the conduct, that public interest would arise.”  The court also demanded that, as in the case of limited-purpose public figures, the controversy must pre-exist the defamation, and the plaintiff must “retain[ ] public figure status at the time of the alleged defamation.”  The Liddy court was thus much more careful than the Dameron court not to conflate public interest in an individual with that individual’s involvement in a public controversy.

Sandmann’s attorney Lin Wood is familiar with these categories. Lin Wood famously represented Richard Jewell, the security guard at the 1996 Olympics who was falsely reported in the media to have planted the bomb that killed two and injured 110.  Jewell, far from being the culprit, was actually a hero: he spotted the bomb and prevented more people from being injured.  Nonetheless, the mere fact that he was in the wrong place at the wrong time and thus his actions became newsworthy led a Georgia court to label him an involuntary public figure when he sued the media for publishing defamatory falsehoods about him.

Although Sandmann still has many defamation battles left to fight, they may never result in a precedent-setting legal opinion guiding the development of defamation doctrine in the digital era. In the meantime, though, these cases give those of us who love defamation law plenty to talk about.

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As Republicans try to present President Donald Trump as a criminal justice reformer, his administration is about to set a modern record for executing federal prisoners.

Lezmond Mitchell, now 38, and an underage accomplice were convicted of carjacking and murdering Alyce Slim, 63, and her granddaughter, Tiffany Lee, 9, in 2001. Mitchell was 20 at the time. The feds got involved because the crime took place on Navajo land, and everybody involved (both killers and victims) were Navajo.

The teen accomplice, Johnny Orsinger, was sentenced to life in prison. Mitchell was sentenced to death. He is scheduled for to be executed by lethal injection on Wednesday.

Until Trump appointed William Barr attorney general, Mitchell was essentially serving a life sentence as well. The federal death penalty was for a time deemed unconstitutional, following a Supreme Court ruling in 1972 in Furman v. Georgia. The federal death penalty was reinstated in 1988 for a narrow class of offenses, which was then expanded in the Federal Death Penalty Act of 1994. There are currently 62 federal prisoners on death row. But before Trump’s presidency, only three federal prisoners had been executed since the federal death penalty had been reinstated.

All three of those executions took place under President George W. Bush. The most famous of the prisoners killed was Oklahoma City bomber Timothy McVeigh, executed in 2001. No other administration, Democratic or Republican, had executed any federal prisoners since 1963, under President John F. Kennedy.

Last year Barr announced that the Department of Justice and federal Bureau of Prisons were reestablishing protocols to resume executions and scheduled five men for death. Three died in July. In the course of a single week, the Trump administration doubled the number of people who had been executed by the federal government in modern times.

Should the administration follow through with Mitchell, it will set a modern record. It will have executed more federal death row inmates than any other administration since Dwight D. Eisenhower’s.

Leaders of the Navajo Nation do not want Mitchell executed. The tribe opposes the use of the death penalty and has been asking since 2002 for the Department of Justice to respect its sovereignty. Mitchell’s lawyers claim this is the first time the federal government has attempted to execute an inmate for a crime on tribal land over that tribe’s objections. The National Congress of American Indians, a 70-year-old nonprofit advocacy group that lobbies for tribal nations on sovereignty issues, sent a letter to Trump on August 18 asking for him to grant Mitchell clemency. The Intercept‘s Liliana Segura reports that Marlene Slim, the daughter of Alyce and mother of Tiffany, objected to federal government seeking the death penalty against Mitchell, complaining in 2003 that her opposition was “ignored and dishonored.” The child’s father, however, does support Mitchell’s execution.

Mitchell’s lawyers have asked the Supreme Court to intervene, and they’ve sent a clemency request to Trump. Today Mitchell’s lawyers filed a complaint in the U.S. District Court for the District of Columbia to ask that the execution be delayed until such time Trump decides whether to grant clemency.

A fifth federal execution is scheduled for Friday—of Keith Dwayne Nelson, who was convicted of kidnapping, raping, and strangling a 10-year-old girl in 1999.

While Mitchell and his lawyers aren’t claiming that he is innocent, a return to federal executions does mean an increasing likelihood that an innocent prisoner will be executed. The Death Penalty Information Center keeps track of cases where people on death row have subsequently been exonerated for their crimes. A scroll down the list shows that nearly every single year since 2000, at least one death row inmate has been exonerated and had his charges dismissed. There have been three exonerations in 2020 alone.

An execution can’t be taken back. State-level executions have been on the decline since 2000. The number of death-row inmates that have been freed—170 since the 1970s—should inspire skepticism about the government’s ability to limit its killings to the guilty.

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No policy issue has vexed the modern Republican Party more than health care. Over the last decade, the GOP has decried the passage of Obamacare, a health care law based on a plan developed by a conservative think tank and first implemented by a Republican governor; it has attempted to repeal that law and replace it with legislation that many top party officials struggle to explain; and it elected Donald Trump, a man who in his first presidential run praised single-payer health care and whose administration is currently backing a dubious legal challenge to Obamacare even while promising to preserve many of the regulations that challenge would overturn. The party frequently criticizes government-run health care even as Trump has repeatedly promised to preserve and protect Medicare, the nation’s largest and most expensive government-financed health care program. 

The Republican health care agenda is thus not so much a plan as a series of empty buzzwords and phrases—”patient-centered,” “preserving the doctor patient relationship,” “health care choice”—that do little to describe a coherent set of principles or policy mechanisms. Trump’s personal incoherence has further muddled the issue for a party already grasping for direction. 

Even where the party has clear ideas that would advance the interests of individual patients, those ideas are often expressed in such a garbled and disjointed manner that it is difficult to be sure what they are. Take Natalie Harp’s disjointed speech last night at the Republican National Convention. Harp, a cancer patient and member of Trump’s 2020 campaign advisory board, introduced herself as “a formerly forgotten American.” After reading and watching her speech several times, I am reasonably confident that it was intended as an argument for medical legislation known as “right to try.” 

It would hardly be surprising to find someone making that case for right-to-try laws in the midst of a Trump-centric GOP convention. One of the most consistent and positive aspects of Trump’s health care agenda has been his support for these laws, which give terminally ill patients the option to choose potentially life-saving treatments that have not yet been approved by the Food and Drug Administration (FDA). 

In 2018, Trump signed a law expanding the rights of individuals with terminal illnesses to access drugs that have passed the first stage of clinical trials but not passed complete FDA review. Although the direct impact of federal right-to-try appears to have been limited, it established an important principle: The dying have a right to make crucial decisions about their lives and bodies for themselves. Since then, Trump has repeatedly touted the law in speeches and events, advertising it as a way he has helped expand health care choices for individuals. 

Yet Harp’s scattered remarks only briefly touched on the idea behind right to try, thanking Trump for giving her “the right to experimental treatments” and for preserving her “right to try, just like Charlie Gard, that terminally ill British baby, whose government-run health care system decided it was too expensive and too cruel to keep him alive.”

Instead of focusing on the potential benefits of Trump’s law, Harp offered some token culture-war jabs at Democrats, who she said “love to talk about health care being a human right, but a right to what? Well, I’ll tell you. To them, it’s a right to marijuana, opioids, and the right to ‘die with dignity’—a politically correct way of saying ‘assisted suicide.'” And she closed with a rambling ode to Trump’s health policy acumen, starting with the coronavirus: Without Trump, she said, “in January, there would have been no China travel ban. Millions would have died, and millions more would have been infected, while there would be no fast-track approval process for a vaccine.” Without Trump, she said, drugs would be more expensive and there would be no price transparency. Meanwhile “in Joe Biden’s America, China would control our drug production.” 

Harp’s speech was not a case for right to try so much as a loose constellation of Trump-friendly assertions about federal health policy. Some of these assertions were exaggerated (it is unlikely that “millions” would have died without Trump’s China travel restrictions). Others lacked context (Trump’s price transparency rules have been mired in legal challenges and don’t account for some of the deeper complexities of medical billing, limiting their benefits). Others were speculative counterfactuals based on little or no demonstrated evidence (it’s hard to believe that without Trump, China would control drug production and there would be no attempt to accelerate vaccine development). And despite slagging marijuana and opioids, Harp is reported to have experimented with both herself. Even if they proved ineffective for her, it is odd to see someone simultaneously tout the legal expansion of individual health care choices and complain about legal expansions of individual treatments. 

Harp did not even specifically mention Trump’s 2018 law or attempt to describe the substance of what it does. (Hence my initial uncertainty about the precise topic of her speech.) That may be because there is scant evidence that she actually benefited from it. 

Although she has credited Trump’s right-to-try law for her personal medical successes in the past, a Washington Post piece last year found little evidence to support her claim. Instead, according to her own written account, she received “an FDA-approved immunotherapy drug for an unapproved use.” Off-label use of already-approved drugs was legal before the federal right-to-try law passed. It is possible that Harp benefited from Trump’s right-to-try law in some other way, or that the account is somehow incomplete. But it is hard to know based on the information available, and last night’s speech provided no additional details. The Post article says Harp did not respond to repeated questions about her treatment. 

Harp’s speech is thus a perfect illustration of the right’s muddled thinking on health care in the Trump era, where even good ideas are often packaged poorly. The right to try is good legislation based on a humane principle: Individuals should have the right to determine their own medical fates, free of government intervention. But that legislation, and the idea behind it, deserve a better, clearer defense than the GOP seems capable of mustering. 

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I more often note when universities behave badly—or threaten to behave badly—by sanctioning members of the campus community for expressing unpopular opinions. Unfortunately, there are many such episodes to highlight. It is also worth recognizing universities when they behave well.

Professor John Eastman of Chapman University Law School wrote a much-discussed op-ed in Newsweek questioning whether Kamala Harris is a natural-born citizen and thus eligible to be president or vice president. The op-ed applies Eastman’s longstanding views about citizenship under the Constitution, which he has more often discussed in the context of children born on American soil but whose parents are undocumented aliens.

I think Eastman’s constitutional arguments on this topic are generally wrong, and that he is wrong about the specific application to Harris. Many scholars think he is wrong, and they have explained why. But that is how scholarly debate works. Professors will sometimes be wrong, and they are allowed to be wrong. They are allowed be wrong even on politically controversial topics that people outside of academia care about. When they are wrong, they should be rebutted or ignored. There are extreme cases when academics might be so wrong about a matter within their professional competence that it calls into question their professional fitness to hold an academic position, but Eastman is nowhere near that line.

But as is often the case, some think that open discussion of competing points of view in the public sphere is not good enough. Professor Eastman is a “visiting scholar in conservative thought and policy” at the University of Colorado at Boulder. These positions were created in order to increase the intellectual diversity of the university and expose the campus to some conservative scholars. In light of Eastman’s op-ed about Harris, some demanded that Eastman’s position at Colorado be rescinded.

To his credit, the chancellor at the University of Colorado at Boulder has firmly rejected that demand.

Academic freedom includes the rights and responsibilities afforded to faculty members to create and disseminate knowledge and seek truth as the individual understands it, subject to the standards of their disciplines and the rational methods by which truth is established. Even legal scholars who reject Professor Eastman’s constitutional arguments recognize his theories are debatable.

If I would deny Professor Eastman these rights, it would weaken our ability to defend our entire faculty’s pursuit and dissemination of scholarship without fear of censorship or retaliation, even when it offends the sensibilities of others and makes people uncomfortable. However, I do encourage all of us—our visiting scholars included—to remember that while we as faculty have the privilege of academic freedom, that privilege comes with significant collective and individual responsibilities.

As with many such statements, the chancellor’s recognition of the faculty member’s right to free speech comes couched in a discussion of how problematic the faculty member’s speech was in this particular case. That would not generally be my preference for how such statements should be written. But the bottom line is that Colorado has stood up for academic freedom, and in today’s world that is no small thing.

Eastman’s home institution of Chapman University is also coming under pressure to do something about their high-profile law professor. Fortunately, the Chapman president has also emphasized that Eastman enjoys the same freedom of speech that protects every other member of the faculty there. The activists at Chapman appear to already be pivoting away from the demand that Eastman be fired and toward new demands that no one like Eastman ever be hired again and that political orthodoxy be preserved with each new hire going forward. A reminder that academic freedom is a necessary but not a sufficient condition for maintaining a robust intellectual climate.

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