The New Scream Is a Meta-Horror Film About Meta-Horror Films


Scream-2022

If you grew up in America in the 1980s, you grew up watching, or at least aware of, a string of horror franchise films, most of which revolved around the same idea: A masked killer brutally murders suburban teens. What began with John Carpenter’s Halloween followed with Friday the 13th and Wes Craven’s A Nightmare on Elm Street, and then a handful of mostly awful sequels to each, plus various low-level imitators.

By the end of the decade, it was clear that, with a handful of exceptions, most of these films were cheaply churned out cash grabs, built on predictable formulas that sharp teen viewers had figured out. Indeed, as the sequels progressed, seeing these films became less an experience of real horror and more an exercise in box checking, as the genre’s requirements were dutifully met. The viewers had picked up on the hidden rules. Watching teens get slaughtered had become an ironic game.

So when the original Scream came along in 1996, it was something of a revelation. Directed by Nightmare’s Craven, it not only turned those hidden rules into the film’s explicit text, most prominently in a famous monologue about the unspoken rules of horror films, it offered an argument, of sorts, that the game itself was horrific.

Brutal slaughter wasn’t funny, or winkingly clever, or fun; it was, in fact, quite terrifying. And there was something disquieting about the way that so many teenagers treated it as a form of detached amusement—which, in the movie, took the form of teenagers joking their way through mass slaughter. They related to their circumstances as if they were in a schlocky movie, even as their friends were being systematically gutted. As Scott Tobias recently wrote for The Reveal, Scream‘s “meta elements were part of its subversive theme, a bleakly satirical effort to contrast the gruesome horror visited on [protagonist/final girl] Sidney with the utter detachment of her peers, who process actual death as they would deaths on screen.” Scream was both a deconstruction of the era’s teen-slasher format and an indictment of its moral callousness and the cynicism it taught dedicated viewers.

The complication was that Scream was also quite funny and quite clever, even as it found ways to emphasize the sickening nature of its kills. And thus its legacy became largely about its knowingness, the smug self-awareness of its characters, especially as a series of, yes, franchise sequels leaned further toward meta-comic cleverness and less on brutality.

How meta did those sequels become? They even included an in-movie horror franchise, dubbed Stab, based on the events of the Scream films, allowing the Scream series to wryly comment on, well, the impact of the Scream series, further mixing and muddling the notions of real life and movie horror. The sequels weren’t bad, taken on their own terms, but the Scream films developed into a franchise about watching horror movies rather than one about the true nature of horror.

And that brings us to Scream (2022), which despite its lack of numerical notation is the fifth entry in the franchise, part soft reboot, part long-awaited sequel: As the film explains, it’s a “requel.”

Yes, I do mean “explains.” Once again, this is a movie about teens trapped in a horror movie scenario who can only relate to it as a horror movie scenario. There is a monologue detailing the rules, multiple disquisitions on the state of horror movie fandom, references to Jordan Peele, Hereditary, The Babadook, and “elevated” horror. Characters even ask whether the Stab franchise, which in the movie’s universe is eight films in, has run out of ideas. Hardy har.

Are these characters talking about movies they’ve seen, or the movie you’re watching? The answer, of course, is yes. Scream is meta-horror about meta-horror, a reflection on a reflection, a prism in a hall of mirrors, in which the meta-ness has swallowed its own tail, and is somehow coming back for another round now that there’s a new generation with a new relationship to big-screen horror.

In what is probably the film’s cleverest twist, this time the killers are targeting the offspring of characters who were involved in the original Scream—fitting, given that the target audience probably consists of teenagers born to parents who watched the original. The big twist at the end, meanwhile, is predicated on franchise fandom, and one of the kills pivots on the line, “maybe you’re too weak for this franchise.”

Like The Matrix Resurrections, the new Scream sometimes feels like a video essay about the legacy of a still-popular 1990s cultural phenomenon, a snarky YouTube commentary projected on the big screen. And as it proceeds, it becomes more of a riff on the way that internet movie discourse has shaped contemporary film fandom, the way online arguments about movies have shaped what movies are and should be. So while Scream is a sequel and reboot and all the rest, it’s also something else: a take. And the take mostly seems to be, we’re still doing this. Why yes, yes we are.

What the movie doesn’t have is an answer why. As with previous entries in the franchise, Scream (2022) works well enough on its own terms, and it might even be the best film since the original. The movie isn’t particularly deep, but the script by James Vanderbilt and Guy Busick is often quite clever, and directors Matt Bettinelli-Olpin and Tyler Gillett stage the various kills and scares with verve, wit, and precious few cheap jump scares. At a minimum, the film’s creators are well aware of what viewers expect from these sorts of movies, and they find a way to deliver on those expectations without coming across as rote or formulaic. But that is precisely the formula the Scream franchise has settled into, becoming exactly the sort of cutesy, knowing, detached experience that the original critiqued. After two and a half decades, watching Scream movies has become its own kind of game.

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The New Scream Is a Meta-Horror Film About Meta-Horror Films


Scream-2022

If you grew up in America in the 1980s, you grew up watching, or at least aware of, a string of horror franchise films, most of which revolved around the same idea: A masked killer brutally murders suburban teens. What began with John Carpenter’s Halloween followed with Friday the 13th and Wes Craven’s A Nightmare on Elm Street, and then a handful of mostly awful sequels to each, plus various low-level imitators.

By the end of the decade, it was clear that, with a handful of exceptions, most of these films were cheaply churned out cash grabs, built on predictable formulas that sharp teen viewers had figured out. Indeed, as the sequels progressed, seeing these films became less an experience of real horror and more an exercise in box checking, as the genre’s requirements were dutifully met. The viewers had picked up on the hidden rules. Watching teens get slaughtered had become an ironic game.

So when the original Scream came along in 1996, it was something of a revelation. Directed by Nightmare’s Craven, it not only turned those hidden rules into the film’s explicit text, most prominently in a famous monologue about the unspoken rules of horror films, it offered an argument, of sorts, that the game itself was horrific.

Brutal slaughter wasn’t funny, or winkingly clever, or fun; it was, in fact, quite terrifying. And there was something disquieting about the way that so many teenagers treated it as a form of detached amusement—which, in the movie, took the form of teenagers joking their way through mass slaughter. They related to their circumstances as if they were in a schlocky movie, even as their friends were being systematically gutted. As Scott Tobias recently wrote for The Reveal, Scream‘s “meta elements were part of its subversive theme, a bleakly satirical effort to contrast the gruesome horror visited on [protagonist/final girl] Sidney with the utter detachment of her peers, who process actual death as they would deaths on screen.” Scream was both a deconstruction of the era’s teen-slasher format and an indictment of its moral callousness and the cynicism it taught dedicated viewers.

The complication was that Scream was also quite funny and quite clever, even as it found ways to emphasize the sickening nature of its kills. And thus its legacy became largely about its knowingness, the smug self-awareness of its characters, especially as a series of, yes, franchise sequels leaned further toward meta-comic cleverness and less on brutality.

How meta did those sequels become? They even included an in-movie horror franchise, dubbed Stab, based on the events of the Scream films, allowing the Scream series to wryly comment on, well, the impact of the Scream series, further mixing and muddling the notions of real life and movie horror. The sequels weren’t bad, taken on their own terms, but the Scream films developed into a franchise about watching horror movies rather than one about the true nature of horror.

And that brings us to Scream (2022), which despite its lack of numerical notation is the fifth entry in the franchise, part soft reboot, part long-awaited sequel: As the film explains, it’s a “requel.”

Yes, I do mean “explains.” Once again, this is a movie about teens trapped in a horror movie scenario who can only relate to it as a horror movie scenario. There is a monologue detailing the rules, multiple disquisitions on the state of horror movie fandom, references to Jordan Peele, Hereditary, The Babadook, and “elevated” horror. Characters even ask whether the Stab franchise, which in the movie’s universe is eight films in, has run out of ideas. Hardy har.

Are these characters talking about movies they’ve seen, or the movie you’re watching? The answer, of course, is yes. Scream is meta-horror about meta-horror, a reflection on a reflection, a prism in a hall of mirrors, in which the meta-ness has swallowed its own tail, and is somehow coming back for another round now that there’s a new generation with a new relationship to big-screen horror.

In what is probably the film’s cleverest twist, this time the killers are targeting the offspring of characters who were involved in the original Scream—fitting, given that the target audience probably consists of teenagers born to parents who watched the original. The big twist at the end, meanwhile, is predicated on franchise fandom, and one of the kills pivots on the line, “maybe you’re too weak for this franchise.”

Like The Matrix Resurrections, the new Scream sometimes feels like a video essay about the legacy of a still-popular 1990s cultural phenomenon, a snarky YouTube commentary projected on the big screen. And as it proceeds, it becomes more of a riff on the way that internet movie discourse has shaped contemporary film fandom, the way online arguments about movies have shaped what movies are and should be. So while Scream is a sequel and reboot and all the rest, it’s also something else: a take. And the take mostly seems to be, we’re still doing this. Why yes, yes we are.

What the movie doesn’t have is an answer why. As with previous entries in the franchise, Scream (2022) works well enough on its own terms, and it might even be the best film since the original. The movie isn’t particularly deep, but the script by James Vanderbilt and Guy Busick is often quite clever, and directors Matt Bettinelli-Olpin and Tyler Gillett stage the various kills and scares with verve, wit, and precious few cheap jump scares. At a minimum, the film’s creators are well aware of what viewers expect from these sorts of movies, and they find a way to deliver on those expectations without coming across as rote or formulaic. But that is precisely the formula the Scream franchise has settled into, becoming exactly the sort of cutesy, knowing, detached experience that the original critiqued. After two and a half decades, watching Scream movies has become its own kind of game.

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New Civil Liberties Alliance is Hiring

I am happy to pass on this announcement from the New Civil Liberties Alliance. The organization is looking for two legal positions.

First, NCLA is looking for a Senior Litigation Counsel, with at least eight years of experience. Second, NCLA is looking for a litigation counsel with four or more years of experience.

NCLA aims to hire persons with searching intellects who enjoy thinking about constitutional law, who are sophisticated enough that they might have been professors or judges, but who have instead acquired litigation skills. Are you that good? But stuck in a job that doesn’t let you pursue your constitutional interests and defend freedom? If so, this may be the job for you.

Our goal is to recruit individuals for immediate hire.  While NCLA will consider hiring experienced trial counsel for this role who are not thoroughly familiar with administrative law principles, we are particularly interested in bringing aboard counsel with academic or other high-level experience thinking through the most difficult and complex administrative law and constitutional issues.

NCLA has been at the forefront of national legal debates over judicial deference doctrines, nationwide eviction moratoria, lockdowns, vaccine mandates, natural immunity, speech bans and mandates, structural constitutional flaws with federal agencies, delegation/divesting debates, the role of federal guidance, the lack of due process in administrative adjudications and Title IX tribunals, unlawful surveillance and information gathering, unconstitutional conditions on spending, and many more.  We need the very best minds to help judges understand the unlawfulness of agency governance and to restore the Constitution’s limits.

You can find more information at the NCLA site. Applications can be emailed to Materials in one PDF document to Debi Ghate with Steadfast, who is assisting with the search: debi.ghate@steadfast.us.

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New Civil Liberties Alliance is Hiring

I am happy to pass on this announcement from the New Civil Liberties Alliance. The organization is looking for two legal positions.

First, NCLA is looking for a Senior Litigation Counsel, with at least eight years of experience. Second, NCLA is looking for a litigation counsel with four or more years of experience.

NCLA aims to hire persons with searching intellects who enjoy thinking about constitutional law, who are sophisticated enough that they might have been professors or judges, but who have instead acquired litigation skills. Are you that good? But stuck in a job that doesn’t let you pursue your constitutional interests and defend freedom? If so, this may be the job for you.

Our goal is to recruit individuals for immediate hire.  While NCLA will consider hiring experienced trial counsel for this role who are not thoroughly familiar with administrative law principles, we are particularly interested in bringing aboard counsel with academic or other high-level experience thinking through the most difficult and complex administrative law and constitutional issues.

NCLA has been at the forefront of national legal debates over judicial deference doctrines, nationwide eviction moratoria, lockdowns, vaccine mandates, natural immunity, speech bans and mandates, structural constitutional flaws with federal agencies, delegation/divesting debates, the role of federal guidance, the lack of due process in administrative adjudications and Title IX tribunals, unlawful surveillance and information gathering, unconstitutional conditions on spending, and many more.  We need the very best minds to help judges understand the unlawfulness of agency governance and to restore the Constitution’s limits.

You can find more information at the NCLA site. Applications can be emailed to Materials in one PDF document to Debi Ghate with Steadfast, who is assisting with the search: debi.ghate@steadfast.us.

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Great Moments in Unintended Consequence (Vol. 5)


Vol5_YT

Here are even more of Reason‘s “great moments in unintended consequences”—stories of when something that sounds like a terrific idea goes horribly wrong. Watch the whole series here.

Part 1: The Transcontinental Tango

The year: 1862.

The problem: There’s no railroad connecting coastal elites!

The solution: Pay rail companies for each mile of track laid for a brand new transcontinental railroad.

Sounds like a great idea, with the best of intentions. What could possibly go wrong?

While Congress has never been great at keeping an eye on spending, it’s even worse at it during a Civil War. With no one looking, the Union Pacific unnecessarily lengthened the route, adding miles of track and pocketing almost half a million dollars.

After two and a half years of construction, the Union Pacific laid track all the way from Omaha to…40 miles outside of Omaha.

I choo-choo-choose to screw taxpayers.

Part 2: Burning Cash

The year: 2012.

The problem: An over-reliance on fossil fuels in Northern Ireland.

The solution: A subsidy for heat generated from renewable sources.

Sounds like a great idea, with the best of intentions. What could possibly go wrong?

Well, it turns out the rate paid by the subsidy was greater than the cost of the fuel being used—so the more wood pellets you burned, the greater your profit. Voila: the “Cash for Ash” program, with farmers heating empty buildings just to collect a paycheck.

In the fallout, Northern Ireland’s first minister refused to stand aside during any inquiry, the deputy first minister resigned in protest, the Northern Ireland Assembly dissolved, and the executive branch collapsed for almost three full years.

Not to mention a whole lot of taxpayer dollars up in smoke.

Part 3. All right, fine. We’ll do the cobra thing

The year: Uhhh…some time in the 19th century? Maybe? Not sure. Might not even be true. Who knows?

The problem: The English colonial city of Delhi is infested with venomous cobras.

The solution: Give money to anyone who brings in a dead cobra.

Sounds like a great idea, with the best of intentions. What could possibly go wrong?

It didn’t take long for folks to realize that the bounty paid for a dead cobra was greater than the cost of raising a cobra. Once city officials got wind of lucrative snake breeding farms, they repealed the bounty—leading cobra farmers to release their now worthless snakes into the wild. Net result: more cobras than ever, a lot of wasted cash, and a book by a German guy with a title that sounds like it’s straight out of G.I. Joe.

While the veracity of the cobra story is hard to pin down, a similar story was documented in Hanoi under French colonial rule—only this time the issue was rats, with a bounty paid for every rat tail brought to the authorities. It wasn’t long before officials began to notice rats without tails, having been set free by rat catchers with a basic understanding of economics.

But don’t worry, we learned our lesson and it never happened ag—

In Fort Benning, Georgia, where the feral pig population was out of control, the bounty—for some forehead slapping reason—was pig tails, which once again…blah, blah, blah…more pigs.

They eventually discontinued the bounty, so don’t worry, everything is swine now.

Great moments in unintended consequences. Good intentions, bad results.

Written and produced by Meredith and Austin Bragg; narrated by Austin Bragg.

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Upcoming Speaking Engagements


Public speaking

Below is a list of my upcoming speaking engagements for the next six months or so. Unless otherwise noted, all events are free and open to the public – and in person. But those at universities are subject to their rules about on-campus access during the Covid pandemic. Those rules vary and may change over time. If you are not a student or faculty member at the relevant institution, you may wish to contact the university in question to ask about details on that front. Obviously, depending on the course of the pandemic some in-person events may be shifted online or cancelled. I will update this post if that happens. I am guardedly optimistic the events will go forward. But it’s hard to know for sure, at this time.

I will add additional events and information to this post, over time. In the meantime if your university, think tank, research institute or other similar organization would like to invite me to speak (either virtually or in person) on any topic within my expertise, I am open for business! You can get an overview of the issues I write and speak about at my website.

January 20, 2021, 12:00-1 PM:  “Voting With Your Feet: How Freedom to Move Can Improve Governance,” R Street Institute, Washington, DC (with moderation and commentary by Jonathan Bydlak, Director, Governance Program, R Street Institute). This is a virtual event. You can sign up to view it for free here. The R Street Institute will be giving out 5 copies of my book Free to Move: Foot Voting, Migration, and Political Freedom, to randomly selected participants.

January 27, 12:30-1:30 PM: “Free to Move: Foot Voting, Migration, and Political Freedom” (tentative title), Georgetown University Law Center, Washington, DC. With commentary by Prof. David Schleicher (Yale Law School), Prof. Sheila Foster (Georgetown), and Dean Rose Cuison-Villazor (Rutgers). This is a virtual event, where participation is by invitation only, though I expect Georgetown law students and faculty will get invitations from the organizers automatically. If you are an academic, student, policy analyst, or member of the media, and you would like an invitation, please e-mail me, and I will arrange it.

January 28, time TBA: “Immigration and the Economic Liberty of Natives,” New York University School of Law, New York, NY (Symposium on Immigration). Unfortunately, this is a virtual event, by invitation only. But I expect NYU law students and faculty will be allowed to attend.

February 3, 11-12 AM (US eastern time): “Free to Move: Foot Voting, Migration, and Political Freedom,” University of Essex, United Kingdom (virtual event). As I understand it, this will be open to students and faculty of the University of Essex.

February 3, 3:20-4:45 PM (tentative time): “Nondelegation Limits on Covid Emergency Powers: Lessons from the Eviction Moratorium and Title 42 Cases,” Panel on “”Covid and the Feds: Moratoria, Mandates, and More,” NYU Journal of Law and Liberty/Pacific Legal Foundation Symposium on Emergency Powers, Mayflower Hotel, Washington, DC.

February 15, 12-1:15 PM (tentative time): “Vaccine Passports as a Constitutional Right,” faculty workshop, Georgetown University Law Center (with Kevin Cope). I expect this event will only be open to Georgetown faculty.

February 24, 12-1:15 PM: “Free to Move: Foot Voting, Migration, and Political Freedom,” University of Wisconsin Law School, Madison, WI (sponsored by the U of Wisconsin Federalist Society).

February 25, 9 AM- Noon (approximate time): “Foot Voting, Ballot Box Voting, and Rational Ignorance,” Panel on “The Rationality of Voting,” American Philosophical Association, Central Division Annual Meeting, Chicago, IL. The other panelists are Julia Maskivker (Rollins College) and Zach Barnett (National University of Singapore). This event is only open to participants in the APA meeting.

March 11, 12-1 PM (tentative time): “Immigration and the Economic Liberty of Natives,” PPE Workshop, Georgetown University, Washington, DC. I expect this event will be open only to Georgetown faculty and students.

March 15, time TBA: “Free to Move: Foot Voting, Migration, and Political Freedom,” University of Alberta, Edmonton, Alberta, Canada.

March 17, time TBA: “Free to Move: Foot Voting, Migration, and Political Freedom,” University of Calgary, Calgary, Alberta, Canada.

March 22, 3-4:30 PM: “Free to Move: Foot Voting, Migration, and Political Freedom,” American Enterprise Institute, Washington, DC. With commentary by Prof. Filipe Campante (Johns Hopkins University) and Emily Hamilton (Senior Research Fellow, Mercatus Center, George Mason University). See the event page here.

March 29, time TBA: “Free to Move: Foot Voting, Migration, and Political Freedom,” Political Theory Project, Brown University, Providence, RI.

April 5, time TBA, but probably around noon: “Free to Move: Foot Voting, Migration, and Political Freedom,” Columbia Law School, New York, NY (sponsored by the Columbia Federalist Society).

April 13 (tentative date), Time TBA: “Free to Move: Foot Voting, Migration, and Political Freedom,” Kelley School of Business, University of Indiana, Bloomington, IN.

May 30, evening time TBA: “Democracy and Political Ignorance: Why Smaller Government is Smarter,” Oxford University, Oxford, United Kingdom (sponsored by the Oxford Hayek Society).

May 31, time TBA, but likely late afternoon:”Free to Move: Foot Voting, Migration, and Political Freedom,” King’s College, London, United Kingdom.

June 1, 1-2 PM: “Free to Move: Foot Voting, Migration, and Political Freedom,” Institute of Economic Affairs, London, United Kingdom.

June 2 (tentative date), Time TBA: “Democracy, Foot Voting, and Knowledge” (tentative title), Conference on “Experts, Citizens, and Knowledge Problems in Democracy,”King’s College, London, United Kingdom.

 

 

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Great Moments in Unintended Consequence (Vol. 5)


Vol5_YT

Here are even more of Reason‘s “great moments in unintended consequences”—stories of when something that sounds like a terrific idea goes horribly wrong. Watch the whole series here.

Part 1: The Transcontinental Tango

The year: 1862.

The problem: There’s no railroad connecting coastal elites!

The solution: Pay rail companies for each mile of track laid for a brand new transcontinental railroad.

Sounds like a great idea, with the best of intentions. What could possibly go wrong?

While Congress has never been great at keeping an eye on spending, it’s even worse at it during a Civil War. With no one looking, the Union Pacific unnecessarily lengthened the route, adding miles of track and pocketing almost half a million dollars.

After two and a half years of construction, the Union Pacific laid track all the way from Omaha to…40 miles outside of Omaha.

I choo-choo-choose to screw taxpayers.

Part 2: Burning Cash

The year: 2012.

The problem: An over-reliance on fossil fuels in Northern Ireland.

The solution: A subsidy for heat generated from renewable sources.

Sounds like a great idea, with the best of intentions. What could possibly go wrong?

Well, it turns out the rate paid by the subsidy was greater than the cost of the fuel being used—so the more wood pellets you burned, the greater your profit. Voila: the “Cash for Ash” program, with farmers heating empty buildings just to collect a paycheck.

In the fallout, Northern Ireland’s first minister refused to stand aside during any inquiry, the deputy first minister resigned in protest, the Northern Ireland Assembly dissolved, and the executive branch collapsed for almost three full years.

Not to mention a whole lot of taxpayer dollars up in smoke.

Part 3. All right, fine. We’ll do the cobra thing

The year: Uhhh…some time in the 19th century? Maybe? Not sure. Might not even be true. Who knows?

The problem: The English colonial city of Delhi is infested with venomous cobras.

The solution: Give money to anyone who brings in a dead cobra.

Sounds like a great idea, with the best of intentions. What could possibly go wrong?

It didn’t take long for folks to realize that the bounty paid for a dead cobra was greater than the cost of raising a cobra. Once city officials got wind of lucrative snake breeding farms, they repealed the bounty—leading cobra farmers to release their now worthless snakes into the wild. Net result: more cobras than ever, a lot of wasted cash, and a book by a German guy with a title that sounds like it’s straight out of G.I. Joe.

While the veracity of the cobra story is hard to pin down, a similar story was documented in Hanoi under French colonial rule—only this time the issue was rats, with a bounty paid for every rat tail brought to the authorities. It wasn’t long before officials began to notice rats without tails, having been set free by rat catchers with a basic understanding of economics.

But don’t worry, we learned our lesson and it never happened ag—

In Fort Benning, Georgia, where the feral pig population was out of control, the bounty—for some forehead slapping reason—was pig tails, which once again…blah, blah, blah…more pigs.

They eventually discontinued the bounty, so don’t worry, everything is swine now.

Great moments in unintended consequences. Good intentions, bad results.

Written and produced by Meredith and Austin Bragg; narrated by Austin Bragg.

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Upcoming Speaking Engagements


Public speaking

Below is a list of my upcoming speaking engagements for the next six months or so. Unless otherwise noted, all events are free and open to the public – and in person. But those at universities are subject to their rules about on-campus access during the Covid pandemic. Those rules vary and may change over time. If you are not a student or faculty member at the relevant institution, you may wish to contact the university in question to ask about details on that front. Obviously, depending on the course of the pandemic some in-person events may be shifted online or cancelled. I will update this post if that happens. I am guardedly optimistic the events will go forward. But it’s hard to know for sure, at this time.

I will add additional events and information to this post, over time. In the meantime if your university, think tank, research institute or other similar organization would like to invite me to speak (either virtually or in person) on any topic within my expertise, I am open for business! You can get an overview of the issues I write and speak about at my website.

January 20, 2021, 12:00-1 PM:  “Voting With Your Feet: How Freedom to Move Can Improve Governance,” R Street Institute, Washington, DC (with moderation and commentary by Jonathan Bydlak, Director, Governance Program, R Street Institute). This is a virtual event. You can sign up to view it for free here. The R Street Institute will be giving out 5 copies of my book Free to Move: Foot Voting, Migration, and Political Freedom, to randomly selected participants.

January 27, 12:30-1:30 PM: “Free to Move: Foot Voting, Migration, and Political Freedom” (tentative title), Georgetown University Law Center, Washington, DC. With commentary by Prof. David Schleicher (Yale Law School), Prof. Sheila Foster (Georgetown), and Dean Rose Cuison-Villazor (Rutgers). This is a virtual event, where participation is by invitation only, though I expect Georgetown law students and faculty will get invitations from the organizers automatically. If you are an academic, student, policy analyst, or member of the media, and you would like an invitation, please e-mail me, and I will arrange it.

January 28, time TBA: “Immigration and the Economic Liberty of Natives,” New York University School of Law, New York, NY (Symposium on Immigration). Unfortunately, this is a virtual event, by invitation only. But I expect NYU law students and faculty will be allowed to attend.

February 3, 11-12 AM (US eastern time): “Free to Move: Foot Voting, Migration, and Political Freedom,” University of Essex, United Kingdom (virtual event). As I understand it, this will be open to students and faculty of the University of Essex.

February 3, 3:20-4:45 PM (tentative time): “Nondelegation Limits on Covid Emergency Powers: Lessons from the Eviction Moratorium and Title 42 Cases,” Panel on “”Covid and the Feds: Moratoria, Mandates, and More,” NYU Journal of Law and Liberty/Pacific Legal Foundation Symposium on Emergency Powers, Mayflower Hotel, Washington, DC.

February 15, 12-1:15 PM (tentative time): “Vaccine Passports as a Constitutional Right,” faculty workshop, Georgetown University Law Center (with Kevin Cope). I expect this event will only be open to Georgetown faculty.

February 24, 12-1:15 PM: “Free to Move: Foot Voting, Migration, and Political Freedom,” University of Wisconsin Law School, Madison, WI (sponsored by the U of Wisconsin Federalist Society).

February 25, 9 AM- Noon (approximate time): “Foot Voting, Ballot Box Voting, and Rational Ignorance,” Panel on “The Rationality of Voting,” American Philosophical Association, Central Division Annual Meeting, Chicago, IL. The other panelists are Julia Maskivker (Rollins College) and Zach Barnett (National University of Singapore). This event is only open to participants in the APA meeting.

March 11, 12-1 PM (tentative time): “Immigration and the Economic Liberty of Natives,” PPE Workshop, Georgetown University, Washington, DC. I expect this event will be open only to Georgetown faculty and students.

March 15, time TBA: “Free to Move: Foot Voting, Migration, and Political Freedom,” University of Alberta, Edmonton, Alberta, Canada.

March 17, time TBA: “Free to Move: Foot Voting, Migration, and Political Freedom,” University of Calgary, Calgary, Alberta, Canada.

March 22, 3-4:30 PM: “Free to Move: Foot Voting, Migration, and Political Freedom,” American Enterprise Institute, Washington, DC. With commentary by Prof. Filipe Campante (Johns Hopkins University) and Emily Hamilton (Senior Research Fellow, Mercatus Center, George Mason University). See the event page here.

March 29, time TBA: “Free to Move: Foot Voting, Migration, and Political Freedom,” Political Theory Project, Brown University, Providence, RI.

April 5, time TBA, but probably around noon: “Free to Move: Foot Voting, Migration, and Political Freedom,” Columbia Law School, New York, NY (sponsored by the Columbia Federalist Society).

April 13 (tentative date), Time TBA: “Free to Move: Foot Voting, Migration, and Political Freedom,” Kelley School of Business, University of Indiana, Bloomington, IN.

May 30, evening time TBA: “Democracy and Political Ignorance: Why Smaller Government is Smarter,” Oxford University, Oxford, United Kingdom (sponsored by the Oxford Hayek Society).

May 31, time TBA, but likely late afternoon:”Free to Move: Foot Voting, Migration, and Political Freedom,” King’s College, London, United Kingdom.

June 1, 1-2 PM: “Free to Move: Foot Voting, Migration, and Political Freedom,” Institute of Economic Affairs, London, United Kingdom.

June 2 (tentative date), Time TBA: “Democracy, Foot Voting, and Knowledge” (tentative title), Conference on “Experts, Citizens, and Knowledge Problems in Democracy,”King’s College, London, United Kingdom.

 

 

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Additional Thoughts on the Supreme Court’s Covid-19 Mandate Decisions

The Supreme Court’s decisions to stay the Occupational Safety and Health Administration vax-or-test emergency temporary standard yet allow the Center for Medicare and Medicaid Services vaccine mandate for covered health care workers to go into force were not particularly surprising. Even though the CMS rule is more stringent in certain respects (in that it does not allow a test-and-mask exception from its vaccination requirement), it was clear from the beginning the OSHA rule represented a more aggressive assertion of agency authority and was thus more legally vulnerable.  The Court’s 5-4 split on the CMS rule was surprising (at least to me), and gives me reason to wonder whether the vaccine mandate for federal contractors will survive eventual Supreme Court review. Here are a few more observations.

Both decisions relied, in part, on the respective agencies historical practice and understanding of their respective statutory authorities. In the CMS decision, the Court noted the Department of Health and Human Services’ “longstanding practice” of imposing conditions on facilities participating Medicare and Medicaid, including conditions that ensure services are provided in a safe and healthy manner. In the OSHA decision, on the other hand, the Court noted that the OSHA ETS was “strikingly unlike the workplace regulations that OSHA has typically imposed.” Even when addressing the risk of disease contagion under its broader authority to set permanent workplace standards, OSHA had never sought to enlist employers in pressuring employees to get vaccinated. Under the bloodborne pathogen rule, for instance, OSHA had required employers to make vaccinations available, but did not make them mandatory or otherwise impose additional costs on employees who refused to get vaccinated.

The Court’s per curiam opinion in NFIB v. OSHA echoed many of the concerns raised by Chief Justice Roberts at oral argument, particularly the concern that the policy was a White House-driven effort to increase vaccination among the American public, more than an agency-driven effort to enhance workplace safety. While never claiming the Administration’s justification for the OSHA ETS were pretextual, the opinion cited Administration statements indicating the rule was more a “public health” measure than a “occupational safety” measure. As the opinion notes, the President himself noted the OSHA rule was part of “a new plan to require more Americans to be vaccinated.”

The NFIB v. OSHA opinion referred to the OSHA rule as a “vaccine mandate,” even though the rule allowed employers to permit employees to test and mask as an alternative (which is why I try to refer to it as a “vax-or-test” requirement). Interestingly enough, the Court’s characterization tracks that offered by OSHA itself, which said its rule required employers to adopt “a mandatory COVID–19
vaccination policy,” with an “exception” for those employers who adopt a policy allowing employees to test weekly and wear masks at work. That is, both the OSHA and CMS policies were described by the implementing agencies as imposing vaccination requirements, subject to exceptions, even though the OSHA rule, in practice, gave employers (as opposed to a select group of employees) a ready (if potentially costly) alternative. Did this matter? It is hard to say, but it certainly affected the public framing and debate over the policy.

Justice Gorsuch wrote a separate concurrence in NFIB v. OSHA adopting a more aggressive posture than the Court’s per curiam. This separate opinion was only joined by Justices Thomas and Alito, and not by any of the other conservatives. What accounts for the split? One possibility is that the Gorsuch opinion raised constitutional concerns about the breadth of delegation to OSHA that the Court’s per curiam largely avoided. While the per curiam’s discussion of the the major questions doctrine could be understood as reflecting principles of agency law (as in principal-agent relationships and how to construe the scope of delegations from the principal to the agent), Justice Gorsuch framed the doctrine in terms of constitutional avoidance. Wrote Gorsuch: “if the statutory subsection the agency cites really did endow OSHA with the power it asserts, that law would likely constitute an unconstitutional delegation of legislative authority.” I suspect the other conservative justices thought such broad pronouncements were unnecessary in this case and that any consideration of constitutional limits on delegation of power to federal agencies should await a case in which the issue is squarely presented.

The fact that six justices were unwilling to read the OSH Act as authorizing this standard, and relied upon major questions considerations to do so, is likely bad news for the Environmental Protection Agency in West Virginia v. EPA, which the Court will hear next month. That case concerns the scope of EPA authority to regulate greenhouse gas emissions from power plants, and tees up the major questions doctrine even more directly than did NFIB v. OSHA. If six justices do not think the OSH Act authorizes OSHA to push vaccination on large employers, I think it quite unlikely there will be five willing to uphold the D.C. Circuit’s broad construction of EPA’s authority under Section 111 of the Clean Air Act.

As both cases involved stay requests, each case returns to the lower courts for further consideration. Given the language and reasoning of NFIB v. OSHA, the OSHA rule is effectively done, but that does not mean that OSHA can do nothing to address the spread of Covid-19 in the workplace. The Court’s opinion goes out of its way to note that OSHA retains the authority to regulate workplace conditions that pose a particular danger of spread. The problem here is that OSHA did not do that with its ETS. Whether the rule applied was determined by the number of employee’s on a firm’s payroll, not the number of people in a shared workplace, in regular or prolonged contact, or anything else tied to the risk of spread in a given workplace. Thus OSHA was in the position of arguing that its rule was “necessary” to address the “grave danger” of Covid-19 among a 102-person salesforce working at distributed locations with relatively little close contact with one another, but was not “necessary” for a firm with 98 employees on a single shoproom floor.

It is also worth noting that OSHA’s authority to adopt permanent standards after notice-and-comment is broader than its authority to adopt emergency temporary standards. So I would not be surprised were OSHA to release a new rule this spring focused on those working conditions in which Covid-19 is likely to pose the greatest risk, and such a rule might well survive judicial review.

One remaining question for the CMS rule will be whether it can apply to all covered facilities. As the Court noted in a footnote to Biden v. Missouri, the statutory language that most clearly supports the vaccine requirement does not apply to some types of facilities covered by the rule, such as end-stage renal disease clinics and home infusion therapy suppliers. This might be the seed for an as-applied challenge, but any such challenge is unlikely to have a major impact. Employees at such facilities represent less than three percent of those covered by the vaccine requirement, and (as the Court noted) the regulation has an express severability provision, so any problem here could not be used to take down the entire rule. For this reason, the Court concluded, there was “no reason to let the infusion-clinic tail wag the hospital dog.”

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Additional Thoughts on the Supreme Court’s Covid-19 Mandate Decisions

The Supreme Court’s decisions to stay the Occupational Safety and Health Administration vax-or-test emergency temporary standard yet allow the Center for Medicare and Medicaid Services vaccine mandate for covered health care workers to go into force were not particularly surprising. Even though the CMS rule is more stringent in certain respects (in that it does not allow a test-and-mask exception from its vaccination requirement), it was clear from the beginning the OSHA rule represented a more aggressive assertion of agency authority and was thus more legally vulnerable.  The Court’s 5-4 split on the CMS rule was surprising (at least to me), and gives me reason to wonder whether the vaccine mandate for federal contractors will survive eventual Supreme Court review. Here are a few more observations.

Both decisions relied, in part, on the respective agencies historical practice and understanding of their respective statutory authorities. In the CMS decision, the Court noted the Department of Health and Human Services’ “longstanding practice” of imposing conditions on facilities participating Medicare and Medicaid, including conditions that ensure services are provided in a safe and healthy manner. In the OSHA decision, on the other hand, the Court noted that the OSHA ETS was “strikingly unlike the workplace regulations that OSHA has typically imposed.” Even when addressing the risk of disease contagion under its broader authority to set permanent workplace standards, OSHA had never sought to enlist employers in pressuring employees to get vaccinated. Under the bloodborne pathogen rule, for instance, OSHA had required employers to make vaccinations available, but did not make them mandatory or otherwise impose additional costs on employees who refused to get vaccinated.

The Court’s per curiam opinion in NFIB v. OSHA echoed many of the concerns raised by Chief Justice Roberts at oral argument, particularly the concern that the policy was a White House-driven effort to increase vaccination among the American public, more than an agency-driven effort to enhance workplace safety. While never claiming the Administration’s justification for the OSHA ETS were pretextual, the opinion cited Administration statements indicating the rule was more a “public health” measure than a “occupational safety” measure. As the opinion notes, the President himself noted the OSHA rule was part of “a new plan to require more Americans to be vaccinated.”

The NFIB v. OSHA opinion referred to the OSHA rule as a “vaccine mandate,” even though the rule allowed employers to permit employees to test and mask as an alternative (which is why I try to refer to it as a “vax-or-test” requirement). Interestingly enough, the Court’s characterization tracks that offered by OSHA itself, which said its rule required employers to adopt “a mandatory COVID–19
vaccination policy,” with an “exception” for those employers who adopt a policy allowing employees to test weekly and wear masks at work. That is, both the OSHA and CMS policies were described by the implementing agencies as imposing vaccination requirements, subject to exceptions, even though the OSHA rule, in practice, gave employers (as opposed to a select group of employees) a ready (if potentially costly) alternative. Did this matter? It is hard to say, but it certainly affected the public framing and debate over the policy.

Justice Gorsuch wrote a separate concurrence in NFIB v. OSHA adopting a more aggressive posture than the Court’s per curiam. This separate opinion was only joined by Justices Thomas and Alito, and not by any of the other conservatives. What accounts for the split? One possibility is that the Gorsuch opinion raised constitutional concerns about the breadth of delegation to OSHA that the Court’s per curiam largely avoided. While the per curiam’s discussion of the the major questions doctrine could be understood as reflecting principles of agency law (as in principal-agent relationships and how to construe the scope of delegations from the principal to the agent), Justice Gorsuch framed the doctrine in terms of constitutional avoidance. Wrote Gorsuch: “if the statutory subsection the agency cites really did endow OSHA with the power it asserts, that law would likely constitute an unconstitutional delegation of legislative authority.” I suspect the other conservative justices thought such broad pronouncements were unnecessary in this case and that any consideration of constitutional limits on delegation of power to federal agencies should await a case in which the issue is squarely presented.

The fact that six justices were unwilling to read the OSH Act as authorizing this standard, and relied upon major questions considerations to do so, is likely bad news for the Environmental Protection Agency in West Virginia v. EPA, which the Court will hear next month. That case concerns the scope of EPA authority to regulate greenhouse gas emissions from power plants, and tees up the major questions doctrine even more directly than did NFIB v. OSHA. If six justices do not think the OSH Act authorizes OSHA to push vaccination on large employers, I think it quite unlikely there will be five willing to uphold the D.C. Circuit’s broad construction of EPA’s authority under Section 111 of the Clean Air Act.

As both cases involved stay requests, each case returns to the lower courts for further consideration. Given the language and reasoning of NFIB v. OSHA, the OSHA rule is effectively done, but that does not mean that OSHA can do nothing to address the spread of Covid-19 in the workplace. The Court’s opinion goes out of its way to note that OSHA retains the authority to regulate workplace conditions that pose a particular danger of spread. The problem here is that OSHA did not do that with its ETS. Whether the rule applied was determined by the number of employee’s on a firm’s payroll, not the number of people in a shared workplace, in regular or prolonged contact, or anything else tied to the risk of spread in a given workplace. Thus OSHA was in the position of arguing that its rule was “necessary” to address the “grave danger” of Covid-19 among a 102-person salesforce working at distributed locations with relatively little close contact with one another, but was not “necessary” for a firm with 98 employees on a single shoproom floor.

It is also worth noting that OSHA’s authority to adopt permanent standards after notice-and-comment is broader than its authority to adopt emergency temporary standards. So I would not be surprised were OSHA to release a new rule this spring focused on those working conditions in which Covid-19 is likely to pose the greatest risk, and such a rule might well survive judicial review.

One remaining question for the CMS rule will be whether it can apply to all covered facilities. As the Court noted in a footnote to Biden v. Missouri, the statutory language that most clearly supports the vaccine requirement does not apply to some types of facilities covered by the rule, such as end-stage renal disease clinics and home infusion therapy suppliers. This might be the seed for an as-applied challenge, but any such challenge is unlikely to have a major impact. Employees at such facilities represent less than three percent of those covered by the vaccine requirement, and (as the Court noted) the regulation has an express severability provision, so any problem here could not be used to take down the entire rule. For this reason, the Court concluded, there was “no reason to let the infusion-clinic tail wag the hospital dog.”

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