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Oren Cass, who is the former domestic policy director for Mitt Romney’s presidential campaign and the founder and executive director of the think tank American Compass, believes that the U.S. government should intervene more aggressively in the manufacturing industry.

Cass participated in a recent Soho Forum virtual debate, held on January 13, 2021, arguing in favor of the proposition:

“To promote prosperity among all income groups, the U.S. government should adopt an industrial policy.”

Arguing against Cass: Scott Lincicome, a senior fellow at the Cato Institute. He says that, in the real world, government interference has only hurt manufacturing. The problem with the economic nationalism favored by Cass is that it insulates companies from the discipline of profit and loss. In a free market, businesses learn from their mistakes. When the government is involved, they react by growing bigger as a way to cover for their failures.

It was an Oxford-style debate, and Lincicome prevailed by convincing 14.56 percent of the audience to switch to his side.

The Soho Forum, sponsored by Reason Foundation, is a monthly debate series typically held at the SubCulture Theater in Manhattan’s East Village, but which has gone remote during the pandemic.

Narrated by Nick Gillespie. Edited by Regan Taylor, John Osterhoudt, and Ian Keyser.

Photo: Andy Star/Envato Elements.

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In Oregon, the good news is that Democratic Gov. Kate Brown wants to open up K-12 schools starting in mid-February. The bad news is that she wants all of the state’s roughly 100,000 school employees to hop the line ahead of 70- and 80-year-olds—the actual demographics most likely to die from COVID-19.

Brown is right to care about school reopening and to understand that remote learning is not serving many children well at all, least of all those with learning disabilities or those who were already liable to fall behind. But vaccine schemes that shirk the Centers for Disease Control and Prevention (CDC) guidelines and fail to recognize that old people are at the highest risk of dying from COVID-19, by an order of magnitude, are irresponsible and will result in deaths that could have been prevented.

Per CDC data, people aged 75–84 have a 220 times higher chance of dying from COVID-19 than people aged 18–29. People in the 65–74 age group have a 90 times greater chance of dying than those in that same comparison group. Yes, some teachers who end up vaccinated by nature of their profession, not their age, will be those at higher risk of dying from COVID-19. In non-charter public schools, the largest chunk of the teacher workforce in the U.S. (about 57 percent) are in the 30–49 age range, while only about 14 percent are under 30.

That leaves about 29 percent of the teacher workforce in the 50 and older demographic, with roughly 30 times the chance of dying from COVID-19 compared to the comparison group. So maybe there’s some plausible limited case to be made for vaccinating that sliver of the workforce, or the very oldest of the bunch. But it’s very hard to look at the currently available data and make the case that either a) schools are a significant vector for COVID-19 transmission from students to teachers or b) those vaccine doses being allocated to the entire pool of teachers over elderly people will do the most good, if the aim is to reduce deaths.

Do also consider the fact that vaccinating teachers might not even be the silver bullet that allows kids to return to school in a timely manner, despite Brown’s best intentions. In Fairfax, Virginia, for example, the teachers union president said she opposes schools returning to full-time in-person instruction even after teachers are vaccinated. She argued the district should wait until children are fully vaccinated—something not likely to happen until 2022—rendering the need for teachers to receive vaccines ahead of many senior citizens absolutely pointless. In Virginia, both teachers and people aged 65 and older are in group 1B, competing for vaccines at the same time.

And there are plentiful examples nationwide of teachers going on strike, or unions expressing discontent with states’ current vaccination plans, or people otherwise casting doubt on the idea that kids will return to classrooms in droves anytime soon. A San Francisco Chronicle headline from earlier this month puts it bluntly: “Moving California teachers to the front of the vaccine line might not be enough to reopen schools.”

Here’s hoping Oregon will pursue a more sane vaccination approach, one that ensures the elderly people most at risk of dying receive their vaccine doses as soon as humanly possible. Unfortunately, the few good decisions the state has made so far appear to be accidents.

Oregon finally did something right on vaccinations but the state would like to clarify that it was an accident. https://t.co/4N5TwUoi2A

— Jacob Grier (@jacobgrier) January 22, 2021

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Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

This week on the Short Circuit podcast, IJ Senior Attorney Rob Frommer discusses his recent argument challenging civil forfeiture at the South Carolina Supreme Court.

• The Trump Administration repealed and replaced the Obama Administration’s signature regulation of carbon dioxide emissions from power plants, reasoning that the Obama-era rule was based on an erroneous interpretation of the Clean Air Act. D.C. Circuit: It is the EPA’s current position that is wrong. EPA has more authority to address global warming than it thinks. Dissent: To the contrary, EPA’s authority is even more limited than the Trump Administration believed.
• Yemeni diplomat in the United States loses his post in September 1994. The following month, his wife gives birth to a daughter in the United States who, at the age of 20, drops out of college and moves to Syria to join ISIS, twice marries ISIS fighters, and has a son born overseas. After the caliphate collapses, the ex-diplomat files suit seeking permission for his daughter and grandson to return to the United States. D.C. Circuit: Nope. Although she was born in the U.S., her father was not “subject to the jurisdiction” of the United States until the United Nations informed the United States of the diplomat’s termination four months later, and thus neither she nor her son are U.S. citizens.
• In 2011, the DOJ’s Office of Legal Counsel opined that the Wire Act’s prohibitions were uniformly limited to sports gambling. In 2018, the Office changed course, opining that most of the Act applies to all forms of bets and wagers. New Hampshire Lottery Commission sues. District court: The Office of Legal Counsel got it right the first time; the Act is limited to sports gambling. First Circuit: Indeed. (Fed Courts enthusiasts may also enjoy the First Circuit’s Whac-A-Moling the government’s standard trio of defenses: standing, ripeness, and mootness.)
• Observing that the “issue of qualified immunity’s role in our jurisprudence is topical, to say the least,” the First Circuit nonetheless concludes that it is “dutybound to apply” the doctrine to bar a claim involving a schizophrenic individual shot and killed by the police.
• In the spring of 2020, the Governor of Maine issued an executive order mandating that travelers coming from out of state self-quarantine for 14 days upon arrival. Two New Hampshirites (among others) sue, alleging violation of their right to interstate travel. District court: No preliminary injunction for you. First Circuit: Affirmed; the quarantine rule satisfies even strict scrutiny.
• Seeking to secure top talent for NCAA basketball teams, an Adidas executive and others funnel tens of thousands of dollars in bribes to the parents of prospective players. The scheme is found out, and they are charged with defrauding the universities of the scholarship money that could have gone to other students. Second Circuit: This widespread and tacitly approved behavior that provides enormous financial benefits to universities does, indeed, defraud those same universities of the pittances they offer student athletes. Convictions affirmed.
• Vermont will pay for high schoolers to attend up to two college courses if their high school is “publicly funded.” And Vermont generally won’t fund religious high schools, even in circumstances where it funds other private schools (an exclusion that IJ has separately sued to challenge). Second Circuit: Plaintiffs are entitled to a preliminary injunction, as they are likely to succeed on their claim that these restrictions operate as status-based discrimination against religious schools. Menashi, J., concurring: And that would also be true if Vermont was discriminating based on religious use, rather than religious status.
• Really stretch your imagination, and suppose a government reporting requirement isn’t clear. It reasonably could mean A or B. What happens if a bank reports information that is a lie under meaning A but true under meaning B? What if the bank was trying to lie under meaning A? The Third Circuit has the answer in a tour of crim-law fundamentals.
• Pennsylvania man is convicted of murder in 1995 based heavily on the testimony of two cooperating witnesses. In 2010, he discovers from public records that those witnesses had other pending charges against them—later dismissed—that the prosecutor failed to disclose. He seeks habeas relief. The trial court dismisses his petition, arguing that he could have searched the public records himself, but three years later, the Third Circuit confirms that prosecutors must turn over all exculpatory evidence, even that in public records. Third Circuit: And because of that change in the law, the trial court should reconsider its dismissal. Dissent: The standard for reconsideration is “extraordinary circumstances,” and there’s nothing extraordinary about prosecutors withholding exculpatory evidence.
• New Jersey financial advisor, seeking to take advantage of state payments for easements over farmland, fraudulently obtains a loan, which he uses to finance the purchase a company that owns a farm. He’s found out, convicted, and the government seeks criminal forfeiture of the farm. Third Circuit: Since there’s no dispute that the company—and not the fraudster—is the actual owner of the farm and that it is not simply the fraudster’s alter ego, the government can, at most, seek criminal forfeiture of the fraudster’s 40% interest in the farm (and maybe civil forfeiture of the stakes held by the other owners: the fraudster’s wife and father).
• In 2007, following Apple’s release of the iPod, iTunes, and iPhone, a company called RXD introduced a new internet-based notepad called “ipad.” Three years later, Apple released the iPad. RXD continued using the ipad mark and even launched a new “ipadtoday.com” website. Fourth Circuit: RXD is not a “first user” and should cut it out.
• Can an equity partner in a law firm sue the firm for racial discrimination under Title VII? No, holds the Fourth Circuit, as an equity partner is not an “employee” of the firm. To hold otherwise would needlessly upend understandings that have been central to the organization of firm partnerships for decades.
• The Orwellian-named “CoreCivic” operates detention facilities for Immigration and Customs Enforcement, where detainees are allegedly threatened with solitary confinement and other punishment if they refuse to participate in various work programs—including cleaning and cooking for other detainees. Fifth Circuit: CoreCivic claims Congress could not possibly have meant for the Trafficking Victims Protection Act to apply to that type of program, but we see no exception in the law. If CoreCivic wants an exemption, it will have to go to Congress. (Bonus dissenting and concurring opinions about whether CoreCivic might prevail on other grounds—and whether to even reach those other issues on a certified appeal.)
• For almost a decade, a municipal sewage system has spewed sewage onto private property—leaving “condoms, toilet paper, raw sewage, and feminine hygiene products.” Repeated requests for help went unheeded, allegedly for political reasons. Fifth Circuit: Precisely because the problem has gone on so long, the property owner’s constitutional claims are time-barred. But she might have a claim under the Clean Water Act.
• The standard for pretrial detention is “probable cause.” The standard for a criminal conviction is “beyond a reasonable doubt.” Sixth Circuit: In the unfortunate lacuna between these standards lies the plaintiff Duzaun Lester, who is out of luck despite spending 20 months in jail before the key witness at trial testified, “Honestly, um, that don’t look like Duzaun.” (To his credit, the prosecutor, who was not involved at the pretrial stage, told the jury to acquit.)
• Officer appeals decision denying qualified immunity, claiming the case should not go to a trial because there is no question that he fired his gun after the victim made a “sudden movement.” Ninth Circuit: Under the Supreme Court’s Johnson decision, we cannot review this kind of factual dispute prior to a final judgment. Dissent: Johnson strikes again. I respectfully ask the Supreme Court to clear up this confounding Johnson decision.
• Australian man living in Hawaii on an H-1B visa has a rifle in his garage. And federal law makes it a crime to knowingly possess a firearm while being an alien admitted under a nonimmigrant visa. But wait. Does that mean that government had to prove the man knew his visa was “nonimmigrant”? Just so, holds the Ninth Circuit. (But this guy totally knew, so conviction affirmed.)
• In which the Ninth Circuit denies (on procedural grounds) a habeas petition filed by an inmate who was sentenced to nine years in prison for failing to update his address with the sex offender registry within five days of becoming homeless.
• Inmate at detention center in McAlester, Okla. ingests a pill offered by fellow inmate. Days-long priapism ensues (if you’re inclined to Google it, don’t), leading to a high probability of life-long impotence. Inmate sues guards. Allegations: The guards let me linger in pain for days without getting me medical care. District court: No dice. Tenth Circuit: Yes dice, at least as to three of the guards, who, the record supports, knew of the inmate’s excruciating condition for a long time and didn’t get him help. And the county sheriff may be on the hook too, since the inmate presented a triable case on whether county policies were to blame for his neglect.
• In a slip-and-fall lawsuit involving a Ross Dress for Less, the Tenth Circuit issued an unpublished decision holding that the presence of the store’s manager destroyed diversity jurisdiction—and leaving to the district court on remand the decision whether to dismiss the manager from the case to preserve jurisdiction. Judge Hartz, meanwhile, issued a separately published dissent declaring himself “baffled” the panel did not exercise its authority to dismiss the manager from the case, given that she was never served with the complaint.
• Officers set a honeypot trap online, and a man calling himself “Rick” took the bait. From there, it was a simple matter to look up Rick’s phone number in a law enforcement database and arrest the man associated with the number. Simple, but also wrong, as it turned out the database was years out of date. Tenth Circuit: Qualified immunity.
• Employees of a federally funded nonprofit allege that they were fired for investigating potential fraud. Eleventh Circuit: Troubling, but not False Claims Act retaliation. The False Claims Act applies to false claims, and the federal funds at issue here were paid to the nonprofit automatically without any claim being filed.

Charlottesville, Va. has long been home to a large community of writers, artists, and other freelance creatives. Surprise! The City now maintains the whole community is a bunch of tax scofflaws, and is seeking to collect years of back taxes under the City’s business license tax law. Enter the Institute for Justice, which sued on behalf of a Charlottesville-based novelist. This week, the court sided with IJ and its client, holding that the City’s tax is unconstitutionally vague as applied to freelance authors.

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New York Gov. Andrew Cuomo has tried and failed to legalize recreational marijuana use for several years now, and in his budget proposal for 2021, he’s giving it yet another try.

How hard can it be to legalize marijuana once the public supports it? In New York, the conflict is over the money, of course. In Cuomo’s budget proposal, he’s entirely focused on the revenue marijuana sales will bring into the state. He’s proposing a 10.25 percent state sales tax, and allowing local sales taxes on top of it. Cuomo predicted that eventually, once the state’s system is fully operational, the government will be bringing in $300 million in tax revenue annually.

But unfortunately, it looks like Cuomo’s proposal may also have some embedded bad ideas. Last year, when Cuomo started shopping around a legalization plan, it included a complete ban on home cultivation for recreational use. In order to legally access marijuana, you had to buy it from a legal vendor, thus guaranteeing the government gets a sweet cut of the money.

Reason has requested a copy of the governor’s full proposal, but his office has not yet responded. According to Marijuana Moment, which has spoken to local advocates, the home cultivation ban is back in Cuomo’s new legislation—and he’s actually expanded it. Last year’s proposal allowed medical marijuana users to grow plants at home. This year’s proposal allows cultivation for neither recreational nor medical marijuana users, a ban reportedly urged by major marijuana companies.

The proposal also allows municipalities and counties with a population of 100,000 and more to opt out of allowing recreational marijuana sales, so in some parts of the state, you may not be able to buy or grow your own marijuana. By contrast, California allows cities to opt out of retail sales, but citizens are permitted to grow up to six plants for their own use at home.

The proposal also doesn’t authorize delivery or point-of-sale marijuana consumption but will leave it to regulators to develop new categories of licenses later on.

More bad news about Cuomo’s plan came from public defender Eli Northrup of The Bronx Defenders. He noticed that Cuomo’s plan actually increases the criminal penalty for anybody caught selling marijuana to somebody who is under 21. It’s currently a misdemeanor, but Cuomo’s plan turns it into a class D felony with a potential prison sentence of up to two and a half years. The current marijuana legalization bill in circulation in the state’s legislature keeps it as a misdemeanor.

Cuomo’s proposal shows that he and the state don’t actually care that much about the devastating impact that the war on marijuana has had on poor communities. He just wants to make sure that the state still has a solid cash flow once they’ve stopped locking people up, fining them, and seizing their property. And if anybody attempts to grow or smoke weed without giving the state its cut, he’s willing to keep the drug war going.

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Flack. Available now on Amazon Prime Video.

What can I tell you about Robyn? She’s an American working in at a crisis-management publicity agency in London. (Except nobody the word “crisis” is never spoken aloud. “We call them challenges,” she explains to a new staffer.) She spends her days constructing fake weddings, fake breast cancer, fake dog-walking and real dick pix to distract dimwitted reporters (and sometimes even dimwitted police) from the genuine scandals and setbacks of the celebrity world.

When an intern tries to remember who is the target on one complicated disinformation scheme complicated scheme—mistress, wife, or client himself—Robyn counsels her not to overthink it: “In the future, just assume we’re lying to everyone.”

That’s the world of the PR gangstas of Flack, a British-made drama making its sort-of debut this week on Amazon Prime. (Two seasons have already aired on Great Britain’s cable channel W, so if you live in London, stop reading this at once. And don’t post any spoilers in the comments, either, wanker.) Ruthless, cynical and epically mendacious, Robyn and her colleagues are either ghastly avatars of post-modernist truth, or appalling examples of the level of sleaziness that to which television programming has now descended, or maybe both. Either way, they’re quite fascinating as long as you remember to have yourself steam-cleaned after each episode.

Robyn is portrayed by Anna Paquin, who a few years back on True Blood played an amiable psychic with a sexual yearning for vampires and werewolves, a character practically normal compare to this one. Robin’s professional moral compass spins like a GPS with a broken microchip—she makes her team create a fake lesbian sex tape for a fading teenage pop star in hopes that it will divert public attention from the fact that the girl’s recording contract has just been canceled.

The weapons of mass distraction that Robyn unleashes at work inevitably leave her personal in rubble as well. She’s trying to have a baby with her boyfriend, but secretly taking birth-control pills to prevent getting knocked up by her quickie trysts with clients. Not to mention making her umpteenth attempt to dry out—except for red wine, Jagermeister and cocaine. She delivers a scorching  #MeToo rant to a TV-star client—”You haven’t been told since you’re eleven that every male you encounter has the potential to rape and murder you,” she begins, “followed by a life of pre-sexualization, cat-calling and slut-shaming that fills you with so much guilt and fear that when you’re 16 and some kid starts choking you during sex, either with hands or his penis because he saw that in a bunch of porn, you assume that it must be you who got it wrong” —then follows it with a plaintive appeal: “Why haven’t you tried to sleep with me?”

Her work crew is no less unhinged, starting with best friend Eve (Lydia Wilson, Star Trek Beyond), who prefers to be known as The Notorious VAG and introduces herself by saying things like “I only buy handbags made by free-range children.” Their boss, Caroline (Sophie Okonedo, Ratched), seemingly can’t compete a sentence without threatening to fire someone. Guileless intern Melody (Rebecca Benson, The White Princess) mostly serves as everybody else’s punching bag.

Flack is something like a gender-reversed version of Showtime’s Hollywood-fixer drama Ray Donovan, minus all the gunplay and fistfights, and it also has faint echoes of FX’s inside-the-tabloids Dirt. Those shows, however, offered at least some fleeting glimpses of humanity in their characters. The women of Flack are relentlessly savage: in their disdain for their wayward clients; in their open contempt for the stupid and greedy journalists they use as pawns in their schemes; and in their off-handed manipulation of their husbands and boyfriends.

This is all very entertaining. Flack will undoubtedly win the Emmys for Bitchiest Dialogue and Best Puking Sound Effects. (All that cocaine and alcohol has to go somewhere.)

But it also offers the bleakest worldview of humanity since snuff films were allegedly a thing in the 1970s. “I’m trying to be better,” a darkly contemplative Robyn confesses at the end of another long day of lying and laceration. “But what if I don’t actually have better in me?” If?

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