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In 2020, We Have Forgotten How To Leave People Alone

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Two recent episodes, both caught on video, highlight just how bonkers the impulse to turn personal choices into political protest fodder has become. In 2020, nothing is worse, it seems, than other people going about their business in a way you happen to dislike.

In Florida, a group of about a dozen young people protested at a local Target store. Target’s corporate policy is to require masks in stores nationwide regardless of local laws, proving them for free to customers who do not have one.* In this case, the unmasked horde of protesters aimed their chants at any customers who agreed to follow the rule, moving through the store shouting at shoppers to remove their masks.

The Target protesters mirror—albeit in a cheerier way—a recent group of left-wing activists who confronted people dining out near protests against police brutality in Washington, D.C. (Similar incidents also took place in Pittsburgh and in Rochester, New York.) These protesters—ostensibly concerned with racial justice and with reforming or abolishing U.S. policing—surrounded random outdoor diners, demanding at top volume that they express support for the cause. When some people wouldn’t, the crowd surrounded them, berating some diners at close range.

Many people will probably object to grouping these two packs of protesters. But both are refusing to follow pandemic norms meant to protect others. Both endow normal non-political activities with perceived political meaning. And both refuse to leave space for people or private institutions to make their own choices.

The unmasked Target chanters don’t just want the right to go unmasked among friends or in public spaces. They want to go unmasked on someone else’s private property and demand that others there to unmask too. The patio protesters don’t just want the right to assemble and make their voices heard. They want to intimidate people doing unrelated activities into paying lip service to their cause.

No matter what the issue, many people are ill-content to merely avoid having their rights and the rights of others infringed upon; they want to dictate what everyone else does, says, and wears, too. Sometimes they limit that impulse to shouting obnoxiously, or demanding that everyone denounce a particular piece of media or art or public figure. Other times they try to conscript the government to their cause as well. Hence the calls to crack down on social media and the cheers when the authorities micromanage which businesses can accept willing customers during the pandemic.

These with-us-or-against-us performances are a symptom of a larger climate in which every element of our lives has become an opportunity for tribal signaling and cultural warfare, and in which our ruling political tribes are growing increasingly illiberal in their approaches to free speech, free trade, free thought, private property, and so much more. We really are confronted by enormously consequential issues right now, from policing to the pandemic. It’s hard to live and let live when so much is at stake. But that makes it all the more important to direct your anger at something more meaningful than the individual choices of random bystanders.

* This article originally stated that there’s no mask mandate Florida but did not note that Broward County does have a mask mandate.

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Suggesting That Face Masks Are More Effective Than Vaccines, the CDC’s Director Exemplifies the Propaganda That Discourages People From Wearing Them

Robert-Redfield-testifying-9-16-20

In congressional testimony yesterday, Robert Redfield, director of the Centers for Disease Control and Prevention (CDC), emphasized the value of face masks in preventing transmission of COVID-19. “These face masks are the most important, powerful public health tool we have,” he told a Senate subcommittee while holding a cloth mask. “I might even go so far as to say that this face mask is more guaranteed to protect me against COVID than when I take a COVID vaccine.”

As The New York Times notes, Donald Trump is notably less enthusiastic about face masks. Redfield “made a mistake” when he said masks provide better protection than vaccines, the president told reporters yesterday. While masks “may be effective,” he said, a “vaccine is much more effective.”

The Times presents that contrast as another example of the president’s resistance to expert advice in dealing with COVID-19. “Trump Scorns His Own Scientists Over Virus Data,” says the headline. But the truth is more complicated. Redfield, whose agency initially dismissed the value of face masks worn by the general public, is now erring in the opposite direction by exaggerating the strength of the evidence in favor of that practice. While I believe that evidence is sufficient to conclude that face masks are a reasonable precaution in indoor public places, the case is not as iron-clad as Redfield implies.

Trump’s ambivalence about masks is reflected in the mixed messages he has been sending for months.

In a July 20 tweet, Trump called wearing a face mask in public “a patriotic duty.” He amplified that message at a press briefing the next day. “We’re asking everybody that when you are not able to socially distance, wear a mask,” he said. “Whether you like the mask or not, they have an impact. They’ll have an effect. And we need everything we can get.”

More recently, Trump has expressed skepticism about the effectiveness of face masks. “The concept of a mask is good,” he said during an ABC-sponsored Q&A with undecided voters on Tuesday night, “But it also does—you’re constantly touching it. You’re touching your face. You’re touching plates. There are people that don’t think masks are good.”

That objection to masks, like the concern that people will not wear them properly, does not address the basic question of how we know that masks, when used correctly, help prevent virus transmission. Nor does it address Redfield’s claim about the relative effectiveness of masks vs. vaccines.

In late June, about three months after the CDC began recommending general mask wearing, six COVID-19 researchers published a systematic review and meta-analysis of the evidence supporting that practice in The Lancet. “Face mask use could result in a large reduction in risk of infection,” they reported, although they expressed “low certainty” in that conclusion. They noted that “N95 or similar respirators” were more strongly associated with risk reduction than cloth masks of the sort that Redfield displayed at yesterday’s Senate hearing. The evidence was limited to observational studies, since the authors found “no randomised controlled trials.” But overall, they concluded, the data “suggest that wearing face masks protects people (both health-care workers and the general public) against infection.”

In July, CDC spokesman Jason McDonald noted that “data are limited on the effectiveness of cloth face coverings” and “come primarily from laboratory studies.” But it is reasonable to believe, based on the limited evidence, that a cloth mask is better than nothing when it comes to intercepting respiratory droplets emanating from a mask wearer or from other people. A mask need not be completely effective to do some good.

“Masks, depending on type, filter out the majority of viral particles, but not all,” notes a study published by the Journal of General Internal Medicine in July. But even when masks do not prevent virus transmission, they may reduce the “dose of the virus for the mask-wearer,” resulting in “more mild and asymptomatic infection manifestations.” The CDC’s current advice says “wearing masks can help communities slow the spread of COVID-19 when [masks are] worn consistently and correctly by a majority of people in public settings and when masks are used along with other preventive measures, including social distancing, frequent handwashing, and cleaning and disinfecting.”

What about Redfield’s suggestion that masks are better than vaccines? He said a vaccine might provoke an immune response in 70 percent of the people who receive it. “If I don’t get an immune response, the vaccine is not going to protect me,” he said. “This face mask will.”

Given the variable effectiveness of different mask types and the limited overall evidence, that is clearly an overstatement. The way the Times frames the issue is even more misleading. “Vaccines are not 100 percent effective,” it says, “whereas masks, worn properly, do what they are designed to do.” Neither masks nor vaccines are “100 percent effective.” The question is which strategy works better to control the epidemic: widespread mask wearing or widespread immunity created by a combination of vaccines and prior infection.

The honest answer is that we don’t really know, since that comparison depends on how effective cloth face masks actually are and how effective vaccines prove to be. But we don’t actually have to choose between those two strategies, and in practice we are pursuing both. Face masks are a tool to reduce virus transmission, especially to people who face the greatest risk from COVID-19, while we wait for vaccines that we hope will work well enough to make such precautions unnecessary.

Government officials tend to oversimplify science, ignoring nuances and glossing over uncertainty, in the interest of sending clear public health messages aimed at encouraging behavior they believe will reduce morbidity and mortality. But that approach can backfire when officials make statements that clearly go beyond what we actually know.

In July, when Michigan Gov. Gretchen Whitmer wrote a New York Times op-ed piece urging Trump to impose a nationwide face mask mandate, she asserted that “wearing a mask has been proven to reduce the chance of spreading Covid-19 by about 70 percent”—a claim for which there is no scientific basis. Any mildly skeptical person who investigated Whitmer’s factoid would have quickly discovered it is unsupportable. That hardly seems like a smart strategy for persuading people who are leery of face masks that wearing them is a good idea.

Likewise with Redfield’s comparison of face masks and vaccines. What he should have said is that the evidence, while inconclusive, indicates that wearing face masks when you are indoors with strangers helps protect them, since you may be carrying the virus without realizing it, and may also protect you. Americans may bridle at blatant exaggerations, but that does not mean they can’t handle the truth.

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Younger Judges Appear More Sympathetic to Executive Power

A paper in the February 2020 Journal of Law & Economics by Tom Campbell and Nathaniel Wilcox, “Younger Federal District Court Judges Favor Presidential Power,” finds that federal judges tend to be more supportive of executive power claims when they are younger, and that this may be a consequence that younger federal judges are influenced by the prospect of “promotion,” i.e. potential nomination to a higher court.

Here is the abstract:

From 1960 to 2015, opinions of US federal district court judges (trial judges) in cases involving challenges to executive branch authority show that these judges favor executive authority less as they age. We suggest that district judges know that elevation to the federal circuit court of appeals becomes increasingly improbable, and hence have less reason to cooperate with the executive, with advancing age. Political variables, seniority of judges, and other variables introduced as extra regressors do not reverse this main result, nor does it appear to be the product of cohort effects or selection off the district court. When there are contemporaneous vacancies on their circuit courts, district judges in the 11 state circuits (but not the District of Columbia Circuit) are also more likely to favor the executive.

And here is some interesting discussion from the paper:

There is a possibility that all judges, regardless of their vintage, politics, or any other factor we consider here, experience some common cognitive change (between their mid-50s and mid-60s) that manifests as diminishing support for executive power. Oliver Wendell Holmes (Holmes 1899, p. 455) famously averred that “[j]udges commonly are elderly men, and are more likely to hate at sight any analysis to which they are not accustomed, and which disturbs repose of mind, than to fall in love with novelties.” Assuming that Holmes’s remark about elderly men is not simply a gratuitous insult, one may infer that he thought that age brings a rigid cast of mind, mired in precedents, traditions, and shopworn arguments. On the other hand, Sisk, Heise, and Morriss (1998, pp. 1486–87) believe their results show that “greater seniority tends to make a judge more worldly-wise (practical) and less taken with jurisprudential trends (nonoriginalist)”—very different from Holmes’s view (if not quite opposite to it).

Whatever the true nature of any such change in cognition, a creative scholar may weave it into an explanation of our age effect. We appreciate that our main finding does not rule this out. However, we have a secondary finding, echoed by previous research (Cohen 1991, 1992; Sisk, Heise, and Morriss 1998; Epstein, Landes, and Posner 2013), that district judges’ decisions (opinions, sentences, and/or fines) react to promotion potential, in particular high-frequency arrivals and departures of various circuit court vacancies, in ways that seem to gratify executive preferences. We do not see how any plausible life-cycle theory of gradual changes in cognition can account for these reactions to a high-frequency phenomenon such as the arrival and departure of circuit court vacancies. To the previous research, we add our new finding: evidence that, as they grow older, an appreciable number of district judges behave as if they exit a tournament or contest for the prize of elevation—for the perfectly understandable reason that they are eventually too old to be seriously considered for the prize.

Other things equal, personal advancement should not motivate federal judges. It should not motivate elected officials either, but it is the judicial branch that the US founders especially strove to make independent with life tenure and guarantee against diminution of compensation. We find that the hope for personal advancement cannot be excluded as an explanation of how federal district judges decide cases particularly affecting the powers of the executive. That is a great sadness. If this is true, then, for an individual harmed by excessive reach of presidential power, the courts are not a completely reliable arbiter. The same is true for a member of Congress trying to vindicate legislative responsibility against executive encroachment. Not all grievances can be redressed by the political branches: only the courts can vindicate some rights, and it is distressing to have the scales biased. Further, bias, once practiced, is likely to be repeated, and bias, once accepted, is corrosive. A judge who will tip a decision in favor of her own advancement is a judge who will not decide on the merits in other contexts, and as that perception becomes widespread, the judicial branch loses its only real authority: the respect of the people in a democratic republic. . . .

 

 

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Suggesting That Face Masks Are More Effective Than Vaccines, the CDC’s Director Exemplifies the Propaganda That Discourages People From Wearing Them

Robert-Redfield-testifying-9-16-20

In congressional testimony yesterday, Robert Redfield, director of the Centers for Disease Control and Prevention (CDC), emphasized the value of face masks in preventing transmission of COVID-19. “These face masks are the most important, powerful public health tool we have,” he told a Senate subcommittee while holding a cloth mask. “I might even go so far as to say that this face mask is more guaranteed to protect me against COVID than when I take a COVID vaccine.”

As The New York Times notes, Donald Trump is notably less enthusiastic about face masks. Redfield “made a mistake” when he said masks provide better protection than vaccines, the president told reporters yesterday. While masks “may be effective,” he said, a “vaccine is much more effective.”

The Times presents that contrast as another example of the president’s resistance to expert advice in dealing with COVID-19. “Trump Scorns His Own Scientists Over Virus Data,” says the headline. But the truth is more complicated. Redfield, whose agency initially dismissed the value of face masks worn by the general public, is now erring in the opposite direction by exaggerating the strength of the evidence for masks. While I believe that evidence is sufficient to conclude that face masks are a reasonable precaution in indoor public places, the case is not as iron-clad as Redfield implies.

Trump’s ambivalence about masks is reflected in the mixed messages he has been sending for months.

In a July 20 tweet, Trump called wearing a face mask in public “a patriotic duty.” He amplified that message at a press briefing the next day. “We’re asking everybody that when you are not able to socially distance, wear a mask,” he said. “Whether you like the mask or not, they have an impact. They’ll have an effect. And we need everything we can get.”

More recently, Trump has expressed skepticism about the effectiveness of face masks. “The concept of a mask is good,” he said during an ABC-sponsored Q&A with undecided voters on Tuesday night, “But it also does—you’re constantly touching it. You’re touching your face. You’re touching plates. There are people that don’t think masks are good.”

That objection to masks, like the concern that people will not wear them properly, does not address the basic question of how we know that masks, when used correctly, help prevent virus transmission. Nor does it address Redfield’s claim about the relative effectiveness of masks vs. vaccines.

In late June, about three months after the CDC began recommending general mask wearing, six COVID-19 researchers published a systematic review and meta-analysis of the evidence supporting that practice in The Lancet. “Face mask use could result in a large reduction in risk of infection,” they reported, although they expressed “low certainty” in that conclusion. They noted that “N95 or similar respirators” were more strongly associated with risk reduction than cloth masks of the sort that Redfield displayed at yesterday’s Senate hearing. The evidence was limited to observational studies, since the authors found “no randomised controlled trials.” But overall, they concluded, the data “suggest that wearing face masks protects people (both health-care workers and the general public) against infection.”

In July, CDC spokesman Jason McDonald noted that “data are limited on the effectiveness of cloth face coverings” and “come primarily from laboratory studies.” But it is reasonable to believe, based on the limited evidence, that a cloth mask is better than nothing when it comes to intercepting respiratory droplets emanating from a mask wearer or from other people. A mask need not be completely effective to do some good.

“Masks, depending on type, filter out the majority of viral particles, but not all,” notes a study published by the Journal of General Internal Medicine in July. But even when masks do not prevent virus transmission, they may reduce the “dose of the virus for the mask-wearer,” resulting in “more mild and asymptomatic infection manifestations.” The CDC’s current advice says “wearing masks can help communities slow the spread of COVID-19 when [masks are] worn consistently and correctly by a majority of people in public settings and when masks are used along with other preventive measures, including social distancing, frequent handwashing, and cleaning and disinfecting.”

What about Redfield’s suggestion that masks are better than vaccines? He said a vaccine might provoke an immune response in 70 percent of the people who receive it. “If I don’t get an immune response, the vaccine is not going to protect me,” he said. “This face mask will.”

Given the variable effectiveness of different mask types and the limited overall evidence, that is clearly an overstatement. The way the Times frames the issue is even more misleading. “Vaccines are not 100 percent effective,” it says, “whereas masks, worn properly, do what they are designed to do.” Neither masks nor vaccines are “100 percent effective.” The question is which strategy works better to control the epidemic: widespread mask wearing or widespread immunity created by a combination of vaccines and prior infection.

The honest answer is that we don’t really know, since that comparison depends on how effective cloth face masks actually are and how effective vaccines prove to be. But we don’t actually have to choose between those two strategies, and in practice we are pursuing both. Face masks are a tool to reduce virus transmission, especially to people who face the greatest risk from COVID-19, while we wait for vaccines that we hope will work well enough to make such precautions unnecessary.

Government officials tend to oversimplify science, ignoring nuances and glossing over uncertainty, in the interest of sending clear public health messages aimed at encouraging behavior they believe will reduce morbidity and mortality. But that approach can backfire when officials make statements that clearly go beyond what we actually know.

In July, when Michigan Gov. Gretchen Whitmer wrote a New York Times op-ed piece urging Trump to impose a nationwide face mask mandate, she asserted that “wearing a mask has been proven to reduce the chance of spreading Covid-19 by about 70 percent”—a claim for which there is no scientific basis. Any mildly skeptical person who investigated Whitmer’s factoid would have quickly discovered it is unsupportable. That hardly seems like a smart strategy for persuading people who are leery of face masks that wearing them is a good idea.

Likewise with Redfield’s comparison of face masks and vaccines. What he should have said is that the evidence, while inconclusive, indicates that wearing face masks when you are indoors with strangers helps protect them, since you may be carrying the virus without realizing it, and may also protect you. Americans may bridle at blatant exaggerations, but that does not mean they can’t handle the truth.

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Younger Judges Appear More Sympathetic to Executive Power

A paper in the February 2020 Journal of Law & Economics by Tom Campbell and Nathaniel Wilcox, “Younger Federal District Court Judges Favor Presidential Power,” finds that federal judges tend to be more supportive of executive power claims when they are younger, and that this may be a consequence that younger federal judges are influenced by the prospect of “promotion,” i.e. potential nomination to a higher court.

Here is the abstract:

From 1960 to 2015, opinions of US federal district court judges (trial judges) in cases involving challenges to executive branch authority show that these judges favor executive authority less as they age. We suggest that district judges know that elevation to the federal circuit court of appeals becomes increasingly improbable, and hence have less reason to cooperate with the executive, with advancing age. Political variables, seniority of judges, and other variables introduced as extra regressors do not reverse this main result, nor does it appear to be the product of cohort effects or selection off the district court. When there are contemporaneous vacancies on their circuit courts, district judges in the 11 state circuits (but not the District of Columbia Circuit) are also more likely to favor the executive.

And here is some interesting discussion from the paper:

There is a possibility that all judges, regardless of their vintage, politics, or any other factor we consider here, experience some common cognitive change (between their mid-50s and mid-60s) that manifests as diminishing support for executive power. Oliver Wendell Holmes (Holmes 1899, p. 455) famously averred that “[j]udges commonly are elderly men, and are more likely to hate at sight any analysis to which they are not accustomed, and which disturbs repose of mind, than to fall in love with novelties.” Assuming that Holmes’s remark about elderly men is not simply a gratuitous insult, one may infer that he thought that age brings a rigid cast of mind, mired in precedents, traditions, and shopworn arguments. On the other hand, Sisk, Heise, and Morriss (1998, pp. 1486–87) believe their results show that “greater seniority tends to make a judge more worldly-wise (practical) and less taken with jurisprudential trends (nonoriginalist)”—very different from Holmes’s view (if not quite opposite to it).

Whatever the true nature of any such change in cognition, a creative scholar may weave it into an explanation of our age effect. We appreciate that our main finding does not rule this out. However, we have a secondary finding, echoed by previous research (Cohen 1991, 1992; Sisk, Heise, and Morriss 1998; Epstein, Landes, and Posner 2013), that district judges’ decisions (opinions, sentences, and/or fines) react to promotion potential, in particular high-frequency arrivals and departures of various circuit court vacancies, in ways that seem to gratify executive preferences. We do not see how any plausible life-cycle theory of gradual changes in cognition can account for these reactions to a high-frequency phenomenon such as the arrival and departure of circuit court vacancies. To the previous research, we add our new finding: evidence that, as they grow older, an appreciable number of district judges behave as if they exit a tournament or contest for the prize of elevation—for the perfectly understandable reason that they are eventually too old to be seriously considered for the prize.

Other things equal, personal advancement should not motivate federal judges. It should not motivate elected officials either, but it is the judicial branch that the US founders especially strove to make independent with life tenure and guarantee against diminution of compensation. We find that the hope for personal advancement cannot be excluded as an explanation of how federal district judges decide cases particularly affecting the powers of the executive. That is a great sadness. If this is true, then, for an individual harmed by excessive reach of presidential power, the courts are not a completely reliable arbiter. The same is true for a member of Congress trying to vindicate legislative responsibility against executive encroachment. Not all grievances can be redressed by the political branches: only the courts can vindicate some rights, and it is distressing to have the scales biased. Further, bias, once practiced, is likely to be repeated, and bias, once accepted, is corrosive. A judge who will tip a decision in favor of her own advancement is a judge who will not decide on the merits in other contexts, and as that perception becomes widespread, the judicial branch loses its only real authority: the respect of the people in a democratic republic. . . .

 

 

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An Online Student Attended a Rooftop Party. He Was Reported to NYU and Suspended Indefinitely.

dreamstime_xxl_194085571

It was a gorgeous August weekend in New York City, and Andy—a college senior at New York University (NYU)—decided to attend a rooftop social gathering with his roommates.

The party was consistent with New York City’s Phase 4 COVID-19 guidelines, which allow events of up to 50 people. Many attendees went mask-less, but Andy says he didn’t stand in close proximity to anyone other than his roommates—who are also students—and they left after a short while.

But unbeknownst to Andy—whose name has been changed for this article to protect his privacy—someone at the party posted a video of the event on social media. Andy never saw this video, but he knows that he was visible in it. The video was reported to NYU administrators via the university’s COVID-19 compliance system. On Sunday, August 23—a day after the party—NYU Director of Student Conduct Craig Jolley sent an email to Andy accusing him of “threatening the health and safety of the NYU Community.” By 5:00 p.m. on Monday, NYU had suspended him indefinitely: To return to campus in 2021, Andy will need to write a reflection paper and beg for readmission. Resuming his education might be impossible, anyway, since he relies on a full-tuition scholarship that is now threatened by his disciplinary status.

Andy thinks NYU treated him unfairly. It’s hard to disagree. Importantly, he didn’t actually put anyone on campus in danger, because he had no plans to set foot on NYU property: He lives off campus, and all his classes were online.

“I am not a student who will be staying at or near NYU housing, nor will I be entering Campus Grounds or NYU buildings as I am currently enrolled in all online courses,” Andy wrote in his appeal of the decision.

The appeal was rejected.

***

The COVID-19 pandemic is a multifaceted disaster, casually crippling vast swaths of the U.S. economy, bringing social interaction to an unexpected and unprecedented halt, and of course, killing more than 200,000 Americans. The challenges are daunting for many people, organizations, and industries—U.S. higher education certainly among them.

Colleges and universities have adopted a wide variety of strategies. Some have decided that in-person instruction is simply impossible: In May, California State University (CSU) became the first to announce that the fall semester would be online-only. Earlier this month, CSU made the same call regarding the 2021 spring semester.

Many other universities, perhaps realizing that students will balk at paying full tuition for a series of glorified online tutorials, attempted to reopen in various stages and forms. But these reopenings were accompanied by tough restrictions on student social gatherings in dormitories, off-campus housing, and elsewhere. Evidently, administrators expected that students would be willing to come to class, learn, then hurry back to their residences—and stay there. At many campuses, near-perfect compliance with extreme social distancing requirements on the part of students was not merely a requirement, schools assumed they would comply.

“Everything we have done—the months of planning to give our students the opportunity to continue their educational pursuits in person—can be undone in the blink of an eye with just one party or event that does not follow the rules and guidelines,” said Katie Sermersheim, Purdue University’s dean of students, in a statement detailing the school’s no-parties pledge.

Carl Bergstrom, a professor of biology at the University of Washington, likened Sermersheim’s admission that non-universal compliance will destroy the strategy to “an evacuation plan that will work perfectly as long as the building isn’t on fire.”

“Why would anyone admit that their months of planning would collapse if students hold a single party?” he wondered on Twitter.

Universities that believe they can ban many or all social functions for students are essentially conducting an experiment that has been run many times, from the era of Prohibition to modern abstinence-only education. The results of this latest experiment are in, and they are familiar: Students will party, COVID-19 be damned.

The University of North Carolina at Chapel Hill, for instance, opened for in-person learning on August 10. By August 17, the school had decided to go online-only for the duration of the semester following a dramatic spike in coronavirus cases on campus. In an editorial, The Daily Tarheel, which reported numerous parties during the first weekend back at school, chided university leadership for failing to anticipate that students, “many of whom are now living on their own for the first time,” would be reckless. “Reports of parties throughout the weekend come as no surprise,” wrote the student editors.

The social gatherings are entirely unsurprising. But that’s not because students are uniquely incautious. On the contrary, students are just like the rest of us—trying to manage risk while still living life, months beyond the point where most people expected they would be able to go back to normal. (Remember “15 days to slow the spread”?) These risks are not the same for all people—age and health status matter—and they are not equally significant in all circumstances—outdoor events are not indoor events. And people who take on some amount of risk do not always attract equal levels of moral condemnation. Assuming that virtually everyone would obey orders, not just to be more careful than usual, but to live a sad and isolated existence indefinitely—perhaps that was reckless.

Events resembling what happened at UNC have transpired on dozens of campuses, and hundreds of students have already suffered suspensions. Purdue kicked 36 kids off campus for partying without masks. St. Olaf College in Minnesota suspended 17. Syracuse University suspended 23. Northeastern University learned that a first-year student had conducted a poll asking classmates whether they intended to party, despite the school’s restrictions. When more than 100 students responded in the affirmative, the pollster forwarded their names to administrators, who then threatened the students—and their parents—via email.

“You have displayed a disregard for health and safety measures, jeopardized our chances to keep our community safe, and increased the possibility that you and others—including your classmates—might not be able complete the semester,” wrote the school, before demanding that they sign a pledge to improve their behavior.

Northeastern eventually suspended 11 students for partying. They will be allowed to return in the spring. Their tuition for the aborted fall semester—a whopping $36,500—will not be refunded.

***

Andy’s financial hit is indirect but no less serious. His suspension is likely to result in the loss of his full-tuition scholarship, which means he would not be able to afford NYU, even if the administration lets him return. He also has a job offer with a bank that is contingent upon his successful graduation, he told Reason.

“I considered looking at legal action, though I might be out of my budget,” he says. “I contacted a lawyer. She was just ball-parking some numbers and they seemed unreasonable.”

Following their receipt of the social media video—emailed to covidcompliance@nyu.edu, the university’s hotline for reporting noncooperation—NYU administrators accused Andy of violating three separate aspects of the student code of conduct: Policy B1, which prohibits “threatening” behavior that compromises health and safety; Policy E1, which prohibits “disorderly, disruptive, or antagonizing behavior that interferes with the safety, security, health or welfare of the community”; and Policy E3, which obligates students to follow the new COVID-19 guidelines when on campus.

“As you are likely aware, the University is responding swiftly and seriously to behaviors that threaten the health and safety of the NYU Community,” wrote Jolley, the student conduct office director, in his initial email to Andy. Jolley did not respond to a request for comment on this article.

Andy was invited to plead his case on a Zoom call but was given just 24 hours to prepare for it. Jolley rendered his verdict swiftly: Immediately after the call, Andy says he was informed that he was suspended.

Andy was devastated.

“A suspension for me is more than just a semester,” he says. “This adversely impacts my entire life.”

The university was unmoved.

“Considering the importance of creating a safe environment during a global pandemic, the University will not tolerate conduct which intentionally and recklessly disregards the rules and threatens the health and safety of others,” wrote Jolley. “Your behavior in this situation is unacceptable.”

Was it? Reasonable people can debate—and are debating, all over the country—what level of risk is acceptable, for themselves and others. Many people believe the decision to open campuses at all is reckless: Students and faculty affiliated with the University of Georgia’s educators’ union, for instance, held a die-in protest on the school’s law to oppose re-opening. Many educators with union protection expect to be paid, regardless of whether schools re-open, which gives them greater reason to lobby for additional delays. University administrators, on the other hand, probably realize that distance learning hurts their bottom line since it encourages customers—students and their parents—to explore other options. College reopening strategies around the country are based on profoundly misguided assumptions about human behavior.

Andy says he didn’t put the health and safety of other students at risk—he lives off campus and takes all his classes online. He also thinks the COVID-19 rules, as written, only apply to people who are actually present on campus, or in NYU buildings.

Adam Steinbaugh, an attorney with the Foundation for Individual Rights in Education, says Andy has a point.

“COVID-19 is not a computer virus, so unless this event involved a number of NYU students, any interest the university has in wielding its disciplinary procedures to deter the spread of COVID-19 among NYU students is pretty attenuated,” Steinbaugh tells Reason. “It’s hard to blame students for being surprised that this type of policy is being applied to their off-campus conduct.”

Steinbaugh reviewed Andy’s case at Reason‘s request (and with Andy’s permission). He thinks NYU is overreacting, and unless the rooftop party was itself in violation of New York City’s public health orders, it would be tough to justify the suspension.

“Universities appear eager to shift blame for ballooning COVID-19 infections to students,” says Steinbaugh, who notes that the reflection paper assigned to Andy in hopes of gaining readmission is supposed to “focus on the role young people have played in the transmission of COVID-19 in the United States.”

***

For now, Andy is trying to enroll in a different online college so that the semester is not a total waste.

“I’ve got to get some credit somehow,” he says.

He regrets going to the party and says that it wasn’t characteristic of how he has conducted himself during the pandemic.

“While it may not appear this way, I have been attempting to stay safe as best I can,” he wrote in his appeal. “My attempt to seek some feeling of normalcy was nothing more than a snap decision and I cannot emphasize how much I have learned from this process.”

Indeed, going back to school during a pandemic is proving to be an educational experience for everyone, including and especially the educators. School administrators are learning that they can’t quite overcome students’ natural inclinations—all they can do is process their tuition payments. The faster, the better, probably.

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An Online Student Attended a Rooftop Party. He Was Reported to NYU and Suspended Indefinitely.

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It was a gorgeous August weekend in New York City, and Andy—a college senior at New York University (NYU)—decided to attend a rooftop social gathering with his roommates.

The party was consistent with New York City’s Phase 4 COVID-19 guidelines, which allow events of up to 50 people. Many attendees went mask-less, but Andy says he didn’t stand in close proximity to anyone other than his roommates—who are also students—and they left after a short while.

But unbeknownst to Andy—whose name has been changed for this article to protect his privacy—someone at the party posted a video of the event on social media. Andy never saw this video, but he knows that he was visible in it. The video was reported to NYU administrators via the university’s COVID-19 compliance system. On Sunday, August 23—a day after the party—NYU Director of Student Conduct Craig Jolley sent an email to Andy accusing him of “threatening the health and safety of the NYU Community.” By 5:00 p.m. on Monday, NYU had suspended him indefinitely: To return to campus in 2021, Andy will need to write a reflection paper and beg for readmission. Resuming his education might be impossible, anyway, since he relies on a full-tuition scholarship that is now threatened by his disciplinary status.

Andy thinks NYU treated him unfairly. It’s hard to disagree. Importantly, he didn’t actually put anyone on campus in danger, because he had no plans to set foot on NYU property: He lives off campus, and all his classes were online.

“I am not a student who will be staying at or near NYU housing, nor will I be entering Campus Grounds or NYU buildings as I am currently enrolled in all online courses,” Andy wrote in his appeal of the decision.

The appeal was rejected.

***

The COVID-19 pandemic is a multifaceted disaster, casually crippling vast swaths of the U.S. economy, bringing social interaction to an unexpected and unprecedented halt, and of course, killing more than 200,000 Americans. The challenges are daunting for many people, organizations, and industries—U.S. higher education certainly among them.

Colleges and universities have adopted a wide variety of strategies. Some have decided that in-person instruction is simply impossible: In May, California State University (CSU) became the first to announce that the fall semester would be online-only. Earlier this month, CSU made the same call regarding the 2021 spring semester.

Many other universities, perhaps realizing that students will balk at paying full tuition for a series of glorified online tutorials, attempted to reopen in various stages and forms. But these reopenings were accompanied by tough restrictions on student social gatherings in dormitories, off-campus housing, and elsewhere. Evidently, administrators expected that students would be willing to come to class, learn, then hurry back to their residences—and stay there. At many campuses, near-perfect compliance with extreme social distancing requirements on the part of students was not merely a requirement, schools assumed they would comply.

“Everything we have done—the months of planning to give our students the opportunity to continue their educational pursuits in person—can be undone in the blink of an eye with just one party or event that does not follow the rules and guidelines,” said Katie Sermersheim, Purdue University’s dean of students, in a statement detailing the school’s no-parties pledge.

Carl Bergstrom, a professor of biology at the University of Washington, likened Sermersheim’s admission that non-universal compliance will destroy the strategy to “an evacuation plan that will work perfectly as long as the building isn’t on fire.”

“Why would anyone admit that their months of planning would collapse if students hold a single party?” he wondered on Twitter.

Universities that believe they can ban many or all social functions for students are essentially conducting an experiment that has been run many times, from the era of Prohibition to modern abstinence-only education. The results of this latest experiment are in, and they are familiar: Students will party, COVID-19 be damned.

The University of North Carolina at Chapel Hill, for instance, opened for in-person learning on August 10. By August 17, the school had decided to go online-only for the duration of the semester following a dramatic spike in coronavirus cases on campus. In an editorial, The Daily Tarheel, which reported numerous parties during the first weekend back at school, chided university leadership for failing to anticipate that students, “many of whom are now living on their own for the first time,” would be reckless. “Reports of parties throughout the weekend come as no surprise,” wrote the student editors.

The social gatherings are entirely unsurprising. But that’s not because students are uniquely incautious. On the contrary, students are just like the rest of us—trying to manage risk while still living life, months beyond the point where most people expected they would be able to go back to normal. (Remember “15 days to slow the spread”?) These risks are not the same for all people—age and health status matter—and they are not equally significant in all circumstances—outdoor events are not indoor events. And people who take on some amount of risk do not always attract equal levels of moral condemnation. Assuming that virtually everyone would obey orders, not just to be more careful than usual, but to live a sad and isolated existence indefinitely—perhaps that was reckless.

Events resembling what happened at UNC have transpired on dozens of campuses, and hundreds of students have already suffered suspensions. Purdue kicked 36 kids off campus for partying without masks. St. Olaf College in Minnesota suspended 17. Syracuse University suspended 23. Northeastern University learned that a first-year student had conducted a poll asking classmates whether they intended to party, despite the school’s restrictions. When more than 100 students responded in the affirmative, the pollster forwarded their names to administrators, who then threatened the students—and their parents—via email.

“You have displayed a disregard for health and safety measures, jeopardized our chances to keep our community safe, and increased the possibility that you and others—including your classmates—might not be able complete the semester,” wrote the school, before demanding that they sign a pledge to improve their behavior.

Northeastern eventually suspended 11 students for partying. They will be allowed to return in the spring. Their tuition for the aborted fall semester—a whopping $36,500—will not be refunded.

***

Andy’s financial hit is indirect but no less serious. His suspension is likely to result in the loss of his full-tuition scholarship, which means he would not be able to afford NYU, even if the administration lets him return. He also has a job offer with a bank that is contingent upon his successful graduation, he told Reason.

“I considered looking at legal action, though I might be out of my budget,” he says. “I contacted a lawyer. She was just ball-parking some numbers and they seemed unreasonable.”

Following their receipt of the social media video—emailed to covidcompliance@nyu.edu, the university’s hotline for reporting noncooperation—NYU administrators accused Andy of violating three separate aspects of the student code of conduct: Policy B1, which prohibits “threatening” behavior that compromises health and safety; Policy E1, which prohibits “disorderly, disruptive, or antagonizing behavior that interferes with the safety, security, health or welfare of the community”; and Policy E3, which obligates students to follow the new COVID-19 guidelines when on campus.

“As you are likely aware, the University is responding swiftly and seriously to behaviors that threaten the health and safety of the NYU Community,” wrote Jolley, the student conduct office director, in his initial email to Andy. Jolley did not respond to a request for comment on this article.

Andy was invited to plead his case on a Zoom call but was given just 24 hours to prepare for it. Jolley rendered his verdict swiftly: Immediately after the call, Andy says he was informed that he was suspended.

Andy was devastated.

“A suspension for me is more than just a semester,” he says. “This adversely impacts my entire life.”

The university was unmoved.

“Considering the importance of creating a safe environment during a global pandemic, the University will not tolerate conduct which intentionally and recklessly disregards the rules and threatens the health and safety of others,” wrote Jolley. “Your behavior in this situation is unacceptable.”

Was it? Reasonable people can debate—and are debating, all over the country—what level of risk is acceptable, for themselves and others. Many people believe the decision to open campuses at all is reckless: Students and faculty affiliated with the University of Georgia’s educators’ union, for instance, held a die-in protest on the school’s law to oppose re-opening. Many educators with union protection expect to be paid, regardless of whether schools re-open, which gives them greater reason to lobby for additional delays. University administrators, on the other hand, probably realize that distance learning hurts their bottom line since it encourages customers—students and their parents—to explore other options. College reopening strategies around the country are based on profoundly misguided assumptions about human behavior.

Andy says he didn’t put the health and safety of other students at risk—he lives off campus and takes all his classes online. He also thinks the COVID-19 rules, as written, only apply to people who are actually present on campus, or in NYU buildings.

Adam Steinbaugh, an attorney with the Foundation for Individual Rights in Education, says Andy has a point.

“COVID-19 is not a computer virus, so unless this event involved a number of NYU students, any interest the university has in wielding its disciplinary procedures to deter the spread of COVID-19 among NYU students is pretty attenuated,” Steinbaugh tells Reason. “It’s hard to blame students for being surprised that this type of policy is being applied to their off-campus conduct.”

Steinbaugh reviewed Andy’s case at Reason‘s request (and with Andy’s permission). He thinks NYU is overreacting, and unless the rooftop party was itself in violation of New York City’s public health orders, it would be tough to justify the suspension.

“Universities appear eager to shift blame for ballooning COVID-19 infections to students,” says Steinbaugh, who notes that the reflection paper assigned to Andy in hopes of gaining readmission is supposed to “focus on the role young people have played in the transmission of COVID-19 in the United States.”

***

For now, Andy is trying to enroll in a different online college so that the semester is not a total waste.

“I’ve got to get some credit somehow,” he says.

He regrets going to the party and says that it wasn’t characteristic of how he has conducted himself during the pandemic.

“While it may not appear this way, I have been attempting to stay safe as best I can,” he wrote in his appeal. “My attempt to seek some feeling of normalcy was nothing more than a snap decision and I cannot emphasize how much I have learned from this process.”

Indeed, going back to school during a pandemic is proving to be an educational experience for everyone, including and especially the educators. School administrators are learning that they can’t quite overcome students’ natural inclinations—all they can do is process their tuition payments. The faster, the better, probably.

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An Amusing Law Review Article Title

There are often attempts at humor or wit in law review article titles, and many of them fail. (Many attempts at humor or wit in other contexts fail, too.) But every so often one comes around that works (or at least works for me); and when it does work, it can make the work more eye-catching and memorable, pique the reader’s interest, and put the reader in a good mood. I still remember an article title I saw in the early 1990s, Ken Gormley’s “One Hundred Years of Privacy”; this both communicated the article’s essence (a look back on the privacy tort a century after Warren and Brandeis first proposed it), and humorously alluded to the novel “One Hundred Years of Solitude.”

Another such title was Michael Stokes Paulsen’s “A RFRA Runs Through It,” echoing the title of the movie “A River Runs Through It.” (True, one risk of such allusions is that they can become dated; perhaps these days most people won’t make the connection.) People who are familiar with religious freedom law know that RFRA is the Religious Freedom Restoration Act, commonly pronounced “riff-rah,” not that different from “river.” The article’s thesis was that after the enactment of the federal RFRA, the entire U.S. Code should be read as if RFRA had amended each statute, and changed the policy balance struck by the drafters of each statute—hence RFRA runs through the entire Code, so the joke is apt. Plus the article was published in a symposium conducted by the Montana Law Review, and the movie was set in Montana.

In any event, I just came across another one that I wanted to mention: “The Law of Gravity,” by Isaac Newton. No, wait, it’s by Rachel López, and here’s an excerpt from the abstract:

Gravity is frequently referenced in treaties, judicial decisions of international and regional bodies, human rights reports, and the resolutions and proclamations of various bodies of the United Nations. These documents refer to certain violations of international law as being “gross,” “serious,” and “grave.” These terms are frequently used interchangeably but seldom defined, and it is often unclear what makes a violation particularly grave. Is it the extreme harm to the victim, the type of rights involved, who committed the violation, or rather the intent of the wrongdoer?

Despite the lack of clarity around the concept, classifying a violation as grave has significant legal consequences under international law. Gravity can determine whether an international court has jurisdiction to prosecute a crime or when a treaty monitoring body can take up an issue. States are prohibited from selling arms to other States if they commit grave violations of human rights or humanitarian law. Gravity has also been used to justify military intervention or punishing a State more harshly for its wrongful acts.

This Article brings more grounding to gravity by examining the concept in all of its forms and offers the first scholarly treatment of gravity across public international law as a whole….

Nice.

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An Amusing Law Review Article Title

There are often attempts at humor or wit in law review article titles, and many of them fail. (Many attempts at humor or wit in other contexts fail, too.) But every so often one comes around that works (or at least works for me); and when it does work, it can make the work more eye-catching and memorable, pique the reader’s interest, and put the reader in a good mood. I still remember an article title I saw in the early 1990s, Ken Gormley’s “One Hundred Years of Privacy”; this both communicated the article’s essence (a look back on the privacy tort a century after Warren and Brandeis first proposed it), and humorously alluded to the novel “One Hundred Years of Solitude.”

Another such title was Michael Stokes Paulsen’s “A RFRA Runs Through It,” echoing the title of the movie “A River Runs Through It.” (True, one risk of such allusions is that they can become dated; perhaps these days most people won’t make the connection.) People who are familiar with religious freedom law know that RFRA is the Religious Freedom Restoration Act, commonly pronounced “riff-rah,” not that different from “river.” The article’s thesis was that after the enactment of the federal RFRA, the entire U.S. Code should be read as if RFRA had amended each statute, and changed the policy balance struck by the drafters of each statute—hence RFRA runs through the entire Code, so the joke is apt. Plus the article was published in a symposium conducted by the Montana Law Review, and the movie was set in Montana.

In any event, I just came across another one that I wanted to mention: “The Law of Gravity,” by Isaac Newton. No, wait, it’s by Rachel López, and here’s an excerpt from the abstract:

Gravity is frequently referenced in treaties, judicial decisions of international and regional bodies, human rights reports, and the resolutions and proclamations of various bodies of the United Nations. These documents refer to certain violations of international law as being “gross,” “serious,” and “grave.” These terms are frequently used interchangeably but seldom defined, and it is often unclear what makes a violation particularly grave. Is it the extreme harm to the victim, the type of rights involved, who committed the violation, or rather the intent of the wrongdoer?

Despite the lack of clarity around the concept, classifying a violation as grave has significant legal consequences under international law. Gravity can determine whether an international court has jurisdiction to prosecute a crime or when a treaty monitoring body can take up an issue. States are prohibited from selling arms to other States if they commit grave violations of human rights or humanitarian law. Gravity has also been used to justify military intervention or punishing a State more harshly for its wrongful acts.

This Article brings more grounding to gravity by examining the concept in all of its forms and offers the first scholarly treatment of gravity across public international law as a whole….

Nice.

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Trump May Tank TikTok Deal With Oracle Because Government Doesn’t Get a Cut

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It’s looking more and more like a TikTok deal won’t be reached before President Donald Trump’s executive order against the app’s parent company, ByteDance, takes effect next week.

For a moment, it looked like at least a compromise on TikTok might be had. But Trump is upset that the U.S. government wouldn’t get a cut for brokering a deal between TikTok parent company ByteDance and potential U.S. buyer Oracle. (And by brokering, we mean banning a foreign product unless the owner sells it to a U.S. company.) Trump also had concerns that it’s not an outright acquisition but a loosely defined “partner” situation between ByteDance and Oracle.

From the Associated Press:

President Donald Trump said he expects to get a report Thursday about Oracle’s bid for the Chinese-owned video-sharing app TikTok and admitted there is no legal path to letting the U.S. Treasury get a cut of the deal—a proposition experts had criticized as unprecedented and possibly illegal.

“I’m not prepared to sign off on anything. I have to see the deal,” Trump told White House reporters Wednesday evening about Oracle’s interest in TikTok.

The president seems to have lost enthusiasm for the deal, in part, after realizing there was no cut for the federal government. “Amazingly, I find that you’re not allowed to do that,” Trump said. “If they’re willing to make big payments to the government they’re not allowed because … there’s no legal path to doing that. … How foolish can we [the United States] be?”

Very foolish, it seems, and heading down a dangerous path.

“The Trump administration’s decision to force the sale of TikTok to a U.S. buyer is, to many, the latest sign the global internet is splintering into national and regional blocs,” suggests University of Washington professor Huatong Sun.

“This has been a concern for several years now, as authoritarian countries such as Russia, China and Iran erect walls around their cyberspace, and democracies like the U.S., India and the European Union cite national security when blocking specific foreign companies like ByteDance’s TikTok and Tencent’s WeChat.”

The administration did assure U.S.-based TikTok employees (in response to a recent lawsuit) that they won’t be in trouble for continuing to be paid by the company.

On Monday evening, “the Department of Justice filed court papers stating that the Department of Commerce will not enforce the Executive Order to prohibit the payment of wages, salaries, or benefits to TikTok employees, or bring any civil or criminal actions against such employees simply for doing their jobs,” announced the Blackstone Law Group.

The Justice Department also said in a court filing this week that the Commerce Department “does not intend to take actions that would target persons or groups whose only connection with WeChat is their use or downloading of the app to convey personal or business information between users.”

The WeChat clarification comes after a nonprofit group called the U.S. WeChat Users Alliance “and several people who say they rely on the app for work, worship, and staying in touch with relatives in China sued to stop the ban in federal court in California,” CNBC reports:

The suit says the ban violates its U.S. users’ freedom of speech, free exercise of religion, and other constitutional rights.

The WeChat users, who say they are not affiliated with WeChat or its parent company, Tencent, are seeking an injunction against the order, and a hearing is scheduled for Thursday.

All of this makes Trump’s order concerning TikTok and WeChat less bad, but still quite bad.

QUICK HITS

  • The proposed response to D.C. protesters in Lafayette Square this June turns out to be more insane than it appeared at first:

  • U.S. District Court Judge Allison Nathan is ordering all federal prosecutors in New York’s Southern District “to read a ruling she issued Wednesday that blasts prosecutors for their handling of evidence in a criminal case involving alleged violations of sanctions against Iran” and questions the “completeness of the government’s account of why prosecutors failed to turn over one key piece of evidence to the defense until the middle of trial.” More here from Politico.
  • “While past elections suggest that Asian Americans have moved significantly toward the Democratic Party, this year’s results show that some groups are moving to the right,” notes NBC News.

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