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The COVID-19 Death Toll Is Rising Much Faster in the U.S. Than in Sweden, Which Now Has Fewer Deaths Per Capita

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I argued last week that it was premature to condemn Sweden’s approach to COVID-19, which has been notably less restrictive than the policies adopted by other European countries and the United States. At the time, Sweden’s per capita COVID-19 death rate was slightly higher than the U.S. rate. Since then, the U.S. rate has surpassed Sweden’s, and the trajectory of deaths suggests that Sweden has been more successful at reducing mortality, despite (or perhaps because of) the government’s decision to eschew a broad lockdown.

According to Worldometer’s tallies, the United States so far has seen 594 COVID-19 deaths per 1 million people, compared to 578 in Sweden. Even more strikingly, deaths in Sweden have barely risen since late June, while deaths in the United States have been climbing steadily since late March. Here is what the graph of cumulative deaths looks like for Sweden:

And here is what that same graph looks like for the United States:

In Sweden, the seven-day average of weekly deaths peaked at 99 on April 16. It has been in the single digits since July 17, hovering around 1 or 2 in recent days. In the United States, that average peaked at 2,256 on April 21. It dropped below 1,000 in early June but rose above that number by late July. Yesterday it was 750, which is two-thirds less than the peak but still substantial, equivalent to about 23 deaths a day in Sweden.

Newly confirmed cases are falling in both countries, but the downward trend in Sweden has been much sharper since late June. The seven-day average of daily new cases has fallen by more than 80 percent in Sweden since June 29. During the same period in the United States, that average initially rose, peaking at nearly 70,000 on July 25. It has since fallen to about 36,000, a 48 percent drop.

Despite some early blunders (most conspicuously, the failure to adequately protect nursing home residents), Sweden generally has pursued a policy that aims to protect people who are at highest risk of dying from COVID-19 while giving the rest of the population considerably more freedom than was allowed by the lockdowns that all but a few governors in the United States imposed last spring. That does not mean Swedes carried on as usual, since the government imposed some restrictions (including a ban on large public gatherings) and issued recommendations aimed at reducing virus transmission.

Achieving herd immunity was never an official goal of Sweden’s policy. But recent trends in Sweden are consistent with the hypothesis that the country has achieved some measure of herd immunity through a combination of exposure to the COVID-19 virus, T-cell response fostered by prior exposure to other coronaviruses, and greater natural resistance among the remaining uninfected population (based on the assumption that people who were most susceptible to infection were especially likely to catch the virus early in the epidemic).

In the United States, meanwhile, sweeping legal restrictions on social and economic activity, despite the enormous costs they imposed, have had no obvious impact on the upward trajectory of cumulative COVID-19 deaths. Given current trends, the gap in per capita deaths between the United States and Sweden is bound to grow, casting more doubt on the cost-effectiveness of lockdowns.

While discussion of COVID-19 tends to focus on government policy, it is important to keep in mind that many other factors, including voluntary precautions, affect the course of the epidemic. “The existing literature has concluded that NPI [nonpharmaceutical intervention] policy and social distancing have been essential to reducing the spread of COVID-19 and the number of deaths due to this deadly pandemic,” UCLA economist Andrew Atkeson and two other researchers note in a National Bureau of Economic Research paper published last month. But when Atkeson and his co-authors looked at COVID-19 trends in 23 countries and 25 U.S. states that had seen more than 1,000 deaths from the disease by late July, they found little evidence to support that conclusion.

“Early declines in the transmission rate of COVID-19 were nearly universal worldwide,” they report, which suggests that “the role of region-specific NPIs implemented in this early phase of the pandemic is likely overstated.” They note that “many of the regions in our sample that instated lockdown policies early on in their local epidemic, removed them later on in our estimation period, or have have not relied on mandated NPIs much at all.” Yet “effective reproduction numbers [the number of people infected by the average carrier] in all regions have continued to remain low relative to initial levels, indicating that the removal of lockdown policies has had little effect on transmission rates.”

Atkeson et al. argue that their findings “raise doubt about the importance [of] NPIs (lockdown policies in particular) in accounting for the evolution of COVID-19 transmission rates over time and across locations.” They suggest that other factors, such as “voluntary social distancing, the network structure of human interactions, and the nature of the disease itself,” play a more important role than variations in policy.

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How Should Universities (Especially Law Schools) Treat The Powerful?

Jacob Levy has a two-part series on how we honor powerful people, starting with the issue of confederate monuments and then moving on to how we should treat people who worked for the government to do bad stuff. One of the core arguments is that we generally give powerful people too much credit, honor, and respect, so trends that cut back against that are probably good. I think he has persuaded me that this is correct. (I’m reminded as well of this recent article by Leah Litman, which I’ve been trying to find the time and words to write about, and may return to in another post.)

I wanted to highlight a couple of paragraphs from Levy’s second essay because they are especially relevant to how law schools operate:

The shared media culture of the days of Walter Cronkite is long gone; there are now paid media niches available to match the polarization and fragmentation of American politics. Why slink offstage in disgrace when there’s a living to be made continuing to denounce Trump’s enemies?

In light of all that, consider the institutions that thrive on prestige and proximity to power: not only think tanks and lobbying firms but also corporate boards, elite media such as the New York Times, elite universities, and the celebrity-intellectual circuit of ideas festivals and televised debates. It’s tempting and easy for such institutions to conflate openness to different ideas and ideological perspectives with bestowing prestige, honors, and money on the powerful, regardless of what political agenda they served with their power. 

In the case of the university, this is the difference between maintaining academic freedom for students or faculty members who advance a range of ideological positions and awarding honorary degrees or prestigious platforms, such as commencement addresses or endowed lectures, to persons whose claim to fame just consists of their time in politics and public office. Students and faculty members must be free to argue in favor of (for example) closed borders and the end of rights of asylum and refuge. They should also be free, in their various clubs and departments, to invite speakers to a campus to advocate those ideas. But should the architects of the family separation policy— not only Nielsen but also John Kelly, Chad Wolf, and the ideologists in the background Steve Bannon and Steven Miller— be honored for their careers? Should they receive visiting university fellowships for distinguished public servants or asked to speak to graduating seniors on the noble calling of politics? Nothing in academic freedom or intellectual freedom or freedom of speech calls for such an outcome.

Again, there’s no avoiding substantive judgments, however much universities do and should resist simply taking partisan sides. Deciding whom to honor is different from deciding what speech to permit. Without an active commitment to refuse to honor the dishonorable, universities will likely do so, allowing themselves to be seduced by the illusion of merit attached to power and celebrity, and then dressing up the decision as intellectual openness.

As I understand the application of Levy’s theory to a law school, it would mean that a student group like the Federalist Society is free to invite any speaker they wish, but the law school might offer an endowed lecture or an honorary degree only to a former Solicitor General in the Obama administration and not in the Trump administration.

This is especially thought-provoking because law schools and the legal profession more generally are so hungrily focused on power and prestige. Students who become lawyers will often need to convince powerful people of their client’s positions. Some of those students will go on to become the powerful people themselves. Some of their professors are still angling for those positions of power.

(Indeed, at some (I think many) law schools a student group cannot invite a powerful person on their own, because the administration holds a monopoly on VIP guests, such as Supreme Court Justices, in order to ensure that they receive the VIP treatment.) All of this is bound up with the law schools’ joint mission of both scholarly study and professional training.

All of that said, I have three basic reactions.

First, a recentering of intellectual merit over power and celebrity is indeed something to aspire to. Imagine, if you can, an academic center in public law whose mission is committed to ideas over power. Imagine speakers and visitors selected only on the basis of what they have to say, and not their identity or prestige. Imagine prizes or awards given to people you have never heard of, but should, rather than to people who will draw a crowd. It is hard for me to imagine, at least at the law schools I have seen, but I think it would be a wonderful thing.

Second, that said, I have concerns about the norms Levy proposes. Yes, he’s right that “It’s tempting and easy … to conflate openness to different ideas and ideological perspectives with bestowing prestige, honors, and money on the powerful, regardless of what political agenda they served with their power.” But in an institution that does honor power, the selective denial of these awards to one ideological corner of the powerful is a form of non-openness. And it sends an especially chilling message to one wing of the students and faculty, say those who aspire to work in a Trump administration rather than a Biden administration.

Indeed, Levy acknowledges, and welcomes, the possibility that we would add more forms of public dishonor to his list. At all but maybe two law schools I’m familiar with, that list would inevitably look like the usual partisan disputes. It shouldn’t, it needn’t, but I think it would.

We could solve this problem by ceasing to venerate any of the powerful, at least not for their power’s own sake. But treating one party’s law enforcement officials as generally honorable while another’s are generally dishonorable would not be a step forward, I don’t think.

Third, I also have a more practical, darker, concern, which is that intellectual openness and institutional hunger for power and prestige might be more related than Levy allows.

On Twitter, Levy adds: “Sacrificing Bill Barr from the law school visiting speaker circuit will not leave law schools unable to find enough conservative speakers for the circuit. The legal academy has many smart and decent conservative scholars, and I’m not criticizing the existence of the circuit!”

But here is what I worry about:

When students call for the cancellation of a speaker because his or her words are seen as harmful or otherwise beyond the pale, an intellectually serious law school needs to be able to say no.

But even at the most serious schools, the administration may struggle. Sometimes they do the right thing only because of pressure from powerful alumni or judges with an affection for the school. Sometimes administrators need to be able to say “you may think these ideas don’t deserve to be heard, but we are training you to practice in front of government officials who believe these ideas or at least want to hear them, so these ideas must be able to be voiced in our walls.”

It’s logically possible for a law school to maintain strong freedom of academic speech while also communicating that these people are dishonorable and would never be given an honored place, only a dishonored place, at the school. But it’s very hard, and administrators can only do so many hard things.

Sometimes it is internal faculty pressure that keeps the flow of ideas open, but there too the issues recur. For example, there was a lot less interest among law faculties in hiring originalist scholars (and still too little interest!) when originalism did not seem to be widespread among judges.

I would like to believe that every law school left to its own devices would allow its students to form (say) a Federalist Society, and allow them to invite any outside speaker they liked, without allowing the speaker to be heckled out of the room, without covertly denying them room assignments, without adopting gerrymandered rules about outside funding and outside speakers, without professorial reprisal against the students involved. I would like to believe that every law school would do this even if the institution did not care about proximity to prestigious and powerful conservatives. But I don’t yet believe that.

(Cross-posted from Summary, Judgment)

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States Aren’t Getting a Federal Coronavirus Bailout. Most Will Be Fine.

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State and local governments hoping for a federal bailout are likely to be on their own for the foreseeable future. Congress failed to reach an agreement this week on another round of coronavirus spending.

After weeks of negotiations over the next coronavirus package, the Senate voted down a so-called “skinny stimulus” bill on Thursday. Sen. Rand Paul (R–Ky.) and Senate Democrats blocked the bill’s advance—though they did so for very different reasons. Paul opposes additional emergency spending because the federal budget deficit is nearing an all-time high, while Democrats want to see yet more spending along the lines of the $3 trillion package the House passed earlier this summer.

Even if it had passed, the Republican-backed $500 billion “skinny stimulus” notably did not include the $1 trillion for cash-strapped states and cities that the House endorsed.

Without that aid on the horizon, some are warning of budgetary catastrophes. The New York Times warned this week of a “dire fiscal crisis” facing some states, declaring in the first paragraph that “Alaska chopped resources for public broadcasting” and that “New York City gutted a nascent composting program that could have kept tons of food waste out of landfills.” Many states have canceled planned pay raises for teachers and other public officials too, the Times notes.

That doesn’t sound like a crisis. It sounds like states are recognizing that falling tax revenue means they will be unable to spend as much as they’d originally planned in the next year or two. In other words, they are doing the important work of budgeting and setting priorities—work that Congress, with its nearly unlimited credit card, refuses to do.

While every state is different, the overall picture for state budgets looks less pessimistic now than it did a few months ago. In April, Moody’s projected that the 50 states were facing a $275 billion revenue shortfall over the next two years due to the coronavirus—and projected that at least 12 states would be able to fully cover their shortfalls with rainy day funds and budgetary reserves. But more recent analyses from a variety of sources—including the Tax Policy Center, the Tax Foundation, and the National Conference of State Legislatures—estimate that the revenue hit will be less severe:

The American Enterprise Institute, a conservative think tank, published a paper this week estimating that state governments face a $105 billion revenue shortfall. When combined with local governments, the revenue shortfall will be about $240 billion.

Those are big numbers. But as a percentage of state revenues, they hardly represent a dire situation. According to the National Association of State Budget Officers (NASBO), state revenue for fiscal year 2020 (which in most states ended on June 30) fell by about 3 percent from fiscal year 2019 levels. High unemployment means that state revenue might take a few years to recover, and “many governors and their administrations have directed agencies to develop contingency plans to reduce their budgets, for fiscal year 2021 and/or fiscal year 2022, by as much as 15 or 20 percent,” NASBO reports.

That seems like a prudent thing to do. It is exactly the sort of thing that policy makers should be doing in the face of a public health crisis and economic downturn: reevaluating budgets to prioritize the important things and cutting where possible.

Budget shortfalls can also push state officials to get creative by doing things they probably should have done a while ago. New Mexico and Pennsylvania, for example, are considering legalizing recreational marijuana, so they can tax it to refill their coffers.

“The states face budget challenges, but the situation in most places is not ‘dire,'” writes Chris Edwards, director of tax policy for the Cato Institue, a libertarian think tank. “State officials can solve budget gaps without further federal aid by tapping rainy day funds, freezing hiring and wages, and improving program efficiencies.”

There is little indication, even in the most pessimistic of scenarios, that states need a $1 trillion bailout from the cash-strapped federal government. And a bailout would create a moral hazard, giving states less incentive to address their own budgetary problems in the future.

Deliberately or not, Congress seems to be letting the states figure this out on their own. That’s just fine.

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The Oscars’ New Diversity Rules Won’t Change Who Wins Best Picture

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Hollywood has always straddled the line between authenticity and artifice, both onscreen and off. In the old-school studio system, it wasn’t unusual for an actor’s “real” identity to be as much a work of fiction as the movies he starred in. Backstories were fabricated; facts were massaged; private lives were obscured. Gay stars pretended to be heterosexual playboys, recognizably ethnic surnames were traded for anglicized ones, and mixed-race actors who could pass as white often took pains to do so.

In the next few years, the Hollywood game-playing surrounding identity may well take a new turn, with actors scrambling to classify themselves outside the white, cis, and heterosexual norms that their predecessors hewed to. This week, the Academy of Motion Picture Arts and Sciences (AMPAS) handed down a brand new set of diversity and inclusion requirements, which films must start meeting in 2022 (with full rollout in 2024) to be eligible for Best Picture consideration. Those who want a shot at the Oscar will need to make sure their production meets those standards in at least two of the following four categories: “Onscreen Representation, Themes and Narratives,” “Creative Leadership and Project Team,” “Industry Access and Opportunities,” and “Audience Development.”

Although this announcement came at a moment when diversity commitments are particularly trendy, anyone who’s followed the Oscars and its attendant controversies over the past few years will know that it’s been brewing for much longer. It was 2015 when an all-white slate of acting nominees first prompted a viral backlash against the Academy and its yearly awards ceremony, a P.R. nightmare that Hollywood has been clumsily trying to overcome ever since. Prior to now, the biggest initiative was a 2018 mass recruitment of new members, which nudged the Academy’s makeup ever so slightly in a more diverse direction while making no real impact on its overall hegemony of white males. Unlike the Academy’s other efforts, this latest move carries a whiff of control, not just over Oscars consideration, but over the art itself.

To check that first box—”Onscreen Representation, Themes and Narratives”—a movie needs one of the following: a leading or major supporting actor from “an underrepresented racial or ethnic group,” a supporting cast made up of at least 30 percent underrepresented categories (including women, people of color, sexual minorities, or disabled people), or a storyline that focuses on one of the aforementioned groups.

On its own, the conflation of diversity with quality raises interesting questions; under these standards, the massive Fast & Furious franchise would be Oscar eligible, but Martin Scorcese’s entire library would struggle to make the cut. But in practice, it’s not Hollywood’s major players who will be scrambling under the new regulations. The higher your budget—and the bigger your back office—the easier it will be to meet these criteria. If they wanted to, big studios could completely ignore the “Representation” and “Creative Leadership” categories that dictate which stories are told by who, and continue to make prestige pictures by and about white men, knowing that they could simply check “Audience Development” and “Industry Access” boxes by filling marketing positions and internship programs with a diverse staff. Instead, the impact will be felt most by indie directors, who work on shoestring budgets, with limited resources and no guarantee of being picked up by a distributor with adequately diverse executive leadership. For them, it becomes a choice: sacrifice their shot at the industry’s highest honor (with all the career-boosting benefits an Oscar nomination entails), or conform. 

Some may shrug at that, or even see it as a net positive in a world where too many movies already exist about straight white dudes. On the other hand, the list of movies that would be shut out from Oscar contention under the “Representation” standard is pretty, well, diverse. The Hurt Locker; Boyhood; O Brother, Where Art Thou?; Birdman; The Lighthouse; 1917; Gladiator; Gone Girl: All would fail to make the cut.

That’s assuming the AMPAS rules actually go into effect, instead of imploding in a maelstrom of grasping identitarianism, opportunistic comings-out, internecine fights about which groups count as “underrepresented,” and uncomfortable questions about how the Academy intends to enforce its own standards. (As the essayist Wesley Yang noted on Twitter, the current literature suggests that sets would undergo “spot checks” for the presence of marginalized cast and crew, an idea that would be amusing if it weren’t so incredibly creepy.) This month has even introduced one riveting example of how incentivizing people to lay claim to marginalized identities can have unexpected and toxic results: Jessica Krug, a professor at George Washington University, confessed that she had been passing as a black woman from the Bronx when in fact she was born to Jewish middle-class parents in Kansas. Krug claimed that she was motivated by mental illness and childhood trauma, but it’s also clear that the charade had its perks; not only did she have access career opportunities and resources reserved for people of color, but her assumed identity granted her status and power in an academic culture where any claim of oppression holds enormous sway.

It’s not that 2024 will usher in a role-reversed reboot of the bad old days, when white-passing actress Merle Oberon pretended her own grandmother was a servant in her household to hide the truth about her heritage from racist Hollywood; it’s more that the Academy doesn’t seem to have really thought through the implications of its own guidelines. Imagine the arguments over whether Jews count as underrepresented, and if not, why. Imagine actors whipping out their 23andMe results to prove their nonwhite status. Imagine the bewildered Academy trying to nominate a Best Actor and Best Actress from a sea of young celebs who’ve all adopted nonbinary identities and they/them pronouns in order to help check the LGBT box for their films’ Best Picture nod. 

All this would be happening against a backdrop of little or no change to the actual slate of Best Picture nominees, which will continue as always to be dominated by prestige pictures from major studios with the occasional, diversity-compliant indie darling (such as Moonlight) in the mix. The new standards will do nothing to resolve the fierce and ongoing debates about representation and racism in Hollywood; movies like Green Book or The Help, which activists hated, would be considered diversity success stories under the new rules. If this is the Academy’s best play for relevance and moral authority in a rapidly shifting entertainment landscape, it’s no wonder that nobody bothers to watch the Oscars anymore.

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Judge Bumatay on Originalism in the Lower Courts: “It is our duty to apply the Constitution—not extend precedent”

Today, Judge Patrick Bumatay dissented from the denial of rehearing en banc in NLRB v. International Association of Bridge, Structural, Ornamental, and Reinforcing Iron Workers. I would commend everyone to read his careful analysis about how lower courts should approach originalism and stare decisis. I may be partial to his approach, as he cites my article on this issue.

I agree with Judge Berzon that this case should have been taken up en banc. I write separately to emphasize my views on why the Supreme Court’s decision in International Brotherhood of Electrical Workers, Local 501, A.F. of L. v. NLRB, 341 U.S. 694 (1951) (“IBEW“), is not binding in this case and why it is our duty to apply the Constitution—not extend precedent—here.

As inferior court judges, we are bound to follow Supreme Court precedent. Hart v. Massanari, 266 F.3d 1155, 1170–71 (9th Cir. 2001). After all, “[f]idelity to precedent—the policy of stare decisis—is vital to the proper exercise of the judicial function.” Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 377 (2010) (Roberts, C.J., concurring). But our fidelity is not blind. We always have a “duty to interpret the Constitution in light of its text, structure, and original understanding.” NLRB v. Noel Canning, 573 U.S. 513, 573 (2014) (Scalia, J., concurring). The same could be said of precedent that has been eroded by more recent jurisprudence.

This doesn’t mean that lower court judges can refuse to follow precedent—even if subsequent caselaw or the original meaning cast it into doubt. See Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989). Lower court judges don’t have license to adopt “a cramped reading” of a case in order to “functionally overrule” it. Thompson v. Marietta Educ. Ass’n, No. 19-4217, 2020 WL 5015460, at *3 (6th Cir. Aug. 25, 2020). Nor are we permitted to create “razor-thin distinctions” to evade precedent’s grasp. Josh Blackman, Originalism and Stare Decisis in the Lower Courts, 13 NYU J.L. & Liberty 44, 51 (2019).

But, where precedent is seriously questioned “as an original matter” or under current Supreme Court doctrine, courts “should tread carefully before extending” it. Garza v. Idaho, 139 S. Ct. 738, 756 (2019) (Thomas, J., dissenting). We can take care not to unduly expand precedents by reading them “in light of and in the direction of the constitutional text and constitutional history.” Edmo v. Corizon, Inc., 949 F.3d 489, 506 (9th Cir. 2020) (Bumatay, J., dissenting). So too with intervening Supreme Court decisions. And if a faithful reading of precedent shows it is not directly controlling, the rule of law may dictate confining the precedent, rather than extending it further. Cf. Citizens United, 558 U.S. at 378 (“[S]tare decisis is not an end in itself. . . . Its greatest purpose is to serve a constitutional ideal—the rule of law. It follows that in the unusual circumstance when fidelity to any particular precedent does more to damage this constitutional ideal than to advance it, we must be more willing to depart from that precedent.”).

In this case, he finds there is not a “razor-thin” distinction with precedent. Therefore, it should not be extended:

Given this backdrop, nothing in Supreme Court doctrine or principles of stare decisis require the extension of IBEW here. IBEW deals with picketing and this case does not. As the cases above show, this is not a “razor-thin” distinction. And as Judge Berzon ably demonstrates, IBEW cannot be squared with modern First Amendment law. See Dissent at 16 (Berzon, J., dissenting) (“Given such a sea change in First Amendment jurisprudence,” IBEW “would need to be quite directly on point to be controlling today.”).

Indeed, Judge Bumatay argues that the a careful study of the original meaning further justifies not extending this precedent. He favorably cites the work of Jud Campbell.

Also, I have doubts that § 158(b)(4)(i)(B), as applied here, would be consistent with the original meaning of the First Amendment. That Amendment pronounces that “Congress shall make no law . . . abridging the freedom of speech.” U.S. Const. amend I. While the contours of this language need further explication, and there is ongoing debate about its meaning among scholars, Justice Scalia articulated the convincing view that the First Amendment generally prevents government from proscribing speech on the basis of content, subject to “traditional categorical exceptions.” R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 382–83 (1992) (identifying obscenity, defamation, and fighting words as examples of such exceptions). Another persuasive view is that the First Amendment cemented the natural right to freely express one’s thoughts, spoken or written, subject to restrictions for the common good. See Jud Campbell, Natural Rights and the First Amendment, 127 Yale L.J. 246, 304–07 (2017). But, under this view, “the Founders widely thought that the freedom to make well-intentioned statements of one’s views belonged to a subset of natural rights . . . that could not be restricted in promotion of the public good and thus fell outside legislative authority to curtail.” Id. at 255–56. As James Madison said, “[o]pinions are not the objects of legislation.” 4 Annals of Cong. 934 (1794); see also Thomas Jefferson, A Bill for Establishing Religious Freedom (1779) (“[T]he opinions of men are not the object of civil government, nor under its jurisdiction[.]”).

Considering our growing understanding of the First Amendment’s original meaning, I question whether Congress can abridge the type of expression at issue here, especially the common catchphrase, “friends don’t let friends cross.” NLRB, 941 F.3d at 904. Such an expression seems precisely like the type of “well-intentioned statement[] of opinion” that the Founders would have thought inalienable. See Campbell, supra, at 255–56, 284. By denying rehearing en banc, we’ve passed on a valuable opportunity to examine First Amendment history and further ground our own jurisprudence in the original meaning of the Constitution.

Judge Bumatay is forming his own string cite for other judges to cite. IAB Local and Edmo are exactly right. (I blogged about Edmo here.) He also cites Judge Thapar’s decision in Thompson v. Marietta Educ. Ass’n. (Jon Adler blogged about it here.) Judge Bumatay really should have been added to the not-so-short list.

With a contrary perspective, Mike Dorf recently wrote that lower courts should disregard Supreme Court precedent that has been called into doubt.

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How Should Universities (Especially Law Schools) Treat The Powerful?

Jacob Levy has a two-part series on how we honor powerful people, starting with the issue of confederate monuments and then moving on to how we should treat people who worked for the government to do bad stuff. One of the core arguments is that we generally give powerful people too much credit, honor, and respect, so trends that cut back against that are probably good. I think he has persuaded me that this is correct. (I’m reminded as well of this recent article by Leah Litman, which I’ve been trying to find the time and words to write about, and may return to in another post.)

I wanted to highlight a couple of paragraphs from Levy’s second essay because they are especially relevant to how law schools operate:

The shared media culture of the days of Walter Cronkite is long gone; there are now paid media niches available to match the polarization and fragmentation of American politics. Why slink offstage in disgrace when there’s a living to be made continuing to denounce Trump’s enemies?

In light of all that, consider the institutions that thrive on prestige and proximity to power: not only think tanks and lobbying firms but also corporate boards, elite media such as the New York Times, elite universities, and the celebrity-intellectual circuit of ideas festivals and televised debates. It’s tempting and easy for such institutions to conflate openness to different ideas and ideological perspectives with bestowing prestige, honors, and money on the powerful, regardless of what political agenda they served with their power. 

In the case of the university, this is the difference between maintaining academic freedom for students or faculty members who advance a range of ideological positions and awarding honorary degrees or prestigious platforms, such as commencement addresses or endowed lectures, to persons whose claim to fame just consists of their time in politics and public office. Students and faculty members must be free to argue in favor of (for example) closed borders and the end of rights of asylum and refuge. They should also be free, in their various clubs and departments, to invite speakers to a campus to advocate those ideas. But should the architects of the family separation policy— not only Nielsen but also John Kelly, Chad Wolf, and the ideologists in the background Steve Bannon and Steven Miller— be honored for their careers? Should they receive visiting university fellowships for distinguished public servants or asked to speak to graduating seniors on the noble calling of politics? Nothing in academic freedom or intellectual freedom or freedom of speech calls for such an outcome.

Again, there’s no avoiding substantive judgments, however much universities do and should resist simply taking partisan sides. Deciding whom to honor is different from deciding what speech to permit. Without an active commitment to refuse to honor the dishonorable, universities will likely do so, allowing themselves to be seduced by the illusion of merit attached to power and celebrity, and then dressing up the decision as intellectual openness.

As I understand the application of Levy’s theory to a law school, it would mean that a student group like the Federalist Society is free to invite any speaker they wish, but the law school might offer an endowed lecture or an honorary degree only to a former Solicitor General in the Obama administration and not in the Trump administration.

This is especially thought-provoking because law schools and the legal profession more generally are so hungrily focused on power and prestige. Students who become lawyers will often need to convince powerful people of their client’s positions. Some of those students will go on to become the powerful people themselves. Some of their professors are still angling for those positions of power.

(Indeed, at some (I think many) law schools a student group cannot invite a powerful person on their own, because the administration holds a monopoly on VIP guests, such as Supreme Court Justices, in order to ensure that they receive the VIP treatment.) All of this is bound up with the law schools’ joint mission of both scholarly study and professional training.

All of that said, I have three basic reactions.

First, a recentering of intellectual merit over power and celebrity is indeed something to aspire to. Imagine, if you can, an academic center in public law whose mission is committed to ideas over power. Imagine speakers and visitors selected only on the basis of what they have to say, and not their identity or prestige. Imagine prizes or awards given to people you have never heard of, but should, rather than to people who will draw a crowd. It is hard for me to imagine, at least at the law schools I have seen, but I think it would be a wonderful thing.

Second, that said, I have concerns about the norms Levy proposes. Yes, he’s right that “It’s tempting and easy … to conflate openness to different ideas and ideological perspectives with bestowing prestige, honors, and money on the powerful, regardless of what political agenda they served with their power.” But in an institution that does honor power, the selective denial of these awards to one ideological corner of the powerful is a form of non-openness. And it sends an especially chilling message to one wing of the students and faculty, say those who aspire to work in a Trump administration rather than a Biden administration.

Indeed, Levy acknowledges, and welcomes, the possibility that we would add more forms of public dishonor to his list. At all but maybe two law schools I’m familiar with, that list would inevitably look like the usual partisan disputes. It shouldn’t, it needn’t, but I think it would.

We could solve this problem by ceasing to venerate any of the powerful, at least not for their power’s own sake. But treating one party’s law enforcement officials as generally honorable while another’s are generally dishonorable would not be a step forward, I don’t think.

Third, I also have a more practical, darker, concern, which is that intellectual openness and institutional hunger for power and prestige might be more related than Levy allows.

On Twitter, Levy adds: “Sacrificing Bill Barr from the law school visiting speaker circuit will not leave law schools unable to find enough conservative speakers for the circuit. The legal academy has many smart and decent conservative scholars, and I’m not criticizing the existence of the circuit!”

But here is what I worry about:

When students call for the cancellation of a speaker because his or her words are seen as harmful or otherwise beyond the pale, an intellectually serious law school needs to be able to say no.

But even at the most serious schools, the administration may struggle. Sometimes they do the right thing only because of pressure from powerful alumni or judges with an affection for the school. Sometimes administrators need to be able to say “you may think these ideas don’t deserve to be heard, but we are training you to practice in front of government officials who believe these ideas or at least want to hear them, so these ideas must be able to be voiced in our walls.”

It’s logically possible for a law school to maintain strong freedom of academic speech while also communicating that these people are dishonorable and would never be given an honored place, only a dishonored place, at the school. But it’s very hard, and administrators can only do so many hard things.

Sometimes it is internal faculty pressure that keeps the flow of ideas open, but there too the issues recur. For example, there was a lot less interest among law faculties in hiring originalist scholars (and still too little interest!) when originalism did not seem to be widespread among judges.

I would like to believe that every law school left to its own devices would allow its students to form (say) a Federalist Society, and allow them to invite any outside speaker they liked, without allowing the speaker to be heckled out of the room, without covertly denying them room assignments, without adopting gerrymandered rules about outside funding and outside speakers, without professorial reprisal against the students involved. I would like to believe that every law school would do this even if the institution did not care about proximity to prestigious and powerful conservatives. But I don’t yet believe that.

(Cross-posted from Summary, Judgment)

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States Aren’t Getting a Federal Coronavirus Bailout. Most Will Be Fine.

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State and local governments hoping for a federal bailout are likely to be on their own for the foreseeable future. Congress failed to reach an agreement this week on another round of coronavirus spending.

After weeks of negotiations over the next coronavirus package, the Senate voted down a so-called “skinny stimulus” bill on Thursday. Sen. Rand Paul (R–Ky.) and Senate Democrats blocked the bill’s advance—though they did so for very different reasons. Paul opposes additional emergency spending because the federal budget deficit is nearing an all-time high, while Democrats want to see yet more spending along the lines of the $3 trillion package the House passed earlier this summer.

Even if it had passed, the Republican-backed $500 billion “skinny stimulus” notably did not include the $1 trillion for cash-strapped states and cities that the House endorsed.

Without that aid on the horizon, some are warning of budgetary catastrophes. The New York Times warned this week of a “dire fiscal crisis” facing some states, declaring in the first paragraph that “Alaska chopped resources for public broadcasting” and that “New York City gutted a nascent composting program that could have kept tons of food waste out of landfills.” Many states have canceled planned pay raises for teachers and other public officials too, the Times notes.

That doesn’t sound like a crisis. It sounds like states are recognizing that falling tax revenue means they will be unable to spend as much as they’d originally planned in the next year or two. In other words, they are doing the important work of budgeting and setting priorities—work that Congress, with its nearly unlimited credit card, refuses to do.

While every state is different, the overall picture for state budgets looks less pessimistic now than it did a few months ago. In April, Moody’s projected that the 50 states were facing a $275 billion revenue shortfall over the next two years due to the coronavirus—and projected that at least 12 states would be able to fully cover their shortfalls with rainy day funds and budgetary reserves. But more recent analyses from a variety of sources—including the Tax Policy Center, the Tax Foundation, and the National Conference of State Legislatures—estimate that the revenue hit will be less severe:

The American Enterprise Institute, a conservative think tank, published a paper this week estimating that state governments face a $105 billion revenue shortfall. When combined with local governments, the revenue shortfall will be about $240 billion.

Those are big numbers. But as a percentage of state revenues, they hardly represent a dire situation. According to the National Association of State Budget Officers (NASBO), state revenue for fiscal year 2020 (which in most states ended on June 30) fell by about 3 percent from fiscal year 2019 levels. High unemployment means that state revenue might take a few years to recover, and “many governors and their administrations have directed agencies to develop contingency plans to reduce their budgets, for fiscal year 2021 and/or fiscal year 2022, by as much as 15 or 20 percent,” NASBO reports.

That seems like a prudent thing to do. It is exactly the sort of thing that policy makers should be doing in the face of a public health crisis and economic downturn: reevaluating budgets to prioritize the important things and cutting where possible.

Budget shortfalls can also push state officials to get creative by doing things they probably should have done a while ago. New Mexico and Pennsylvania, for example, are considering legalizing recreational marijuana, so they can tax it to refill their coffers.

“The states face budget challenges, but the situation in most places is not ‘dire,'” writes Chris Edwards, director of tax policy for the Cato Institue, a libertarian think tank. “State officials can solve budget gaps without further federal aid by tapping rainy day funds, freezing hiring and wages, and improving program efficiencies.”

There is little indication, even in the most pessimistic of scenarios, that states need a $1 trillion bailout from the cash-strapped federal government. And a bailout would create a moral hazard, giving states less incentive to address their own budgetary problems in the future.

Deliberately or not, Congress seems to be letting the states figure this out on their own. That’s just fine.

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The Oscars’ New Diversity Rules Won’t Change Who Wins Best Picture

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Hollywood has always straddled the line between authenticity and artifice, both onscreen and off. In the old-school studio system, it wasn’t unusual for an actor’s “real” identity to be as much a work of fiction as the movies he starred in. Backstories were fabricated; facts were massaged; private lives were obscured. Gay stars pretended to be heterosexual playboys, recognizably ethnic surnames were traded for anglicized ones, and mixed-race actors who could pass as white often took pains to do so.

In the next few years, the Hollywood game-playing surrounding identity may well take a new turn, with actors scrambling to classify themselves outside the white, cis, and heterosexual norms that their predecessors hewed to. This week, the Academy of Motion Picture Arts and Sciences (AMPAS) handed down a brand new set of diversity and inclusion requirements, which films must start meeting in 2022 (with full rollout in 2024) to be eligible for Best Picture consideration. Those who want a shot at the Oscar will need to make sure their production meets those standards in at least two of the following four categories: “Onscreen Representation, Themes and Narratives,” “Creative Leadership and Project Team,” “Industry Access and Opportunities,” and “Audience Development.”

Although this announcement came at a moment when diversity commitments are particularly trendy, anyone who’s followed the Oscars and its attendant controversies over the past few years will know that it’s been brewing for much longer. It was 2015 when an all-white slate of acting nominees first prompted a viral backlash against the Academy and its yearly awards ceremony, a P.R. nightmare that Hollywood has been clumsily trying to overcome ever since. Prior to now, the biggest initiative was a 2018 mass recruitment of new members, which nudged the Academy’s makeup ever so slightly in a more diverse direction while making no real impact on its overall hegemony of white males. Unlike the Academy’s other efforts, this latest move carries a whiff of control, not just over Oscars consideration, but over the art itself.

To check that first box—”Onscreen Representation, Themes and Narratives”—a movie needs one of the following: a leading or major supporting actor from “an underrepresented racial or ethnic group,” a supporting cast made up of at least 30 percent underrepresented categories (including women, people of color, sexual minorities, or disabled people), or a storyline that focuses on one of the aforementioned groups.

On its own, the conflation of diversity with quality raises interesting questions; under these standards, the massive Fast & Furious franchise would be Oscar eligible, but Martin Scorcese’s entire library would struggle to make the cut. But in practice, it’s not Hollywood’s major players who will be scrambling under the new regulations. The higher your budget—and the bigger your back office—the easier it will be to meet these criteria. If they wanted to, big studios could completely ignore the “Representation” and “Creative Leadership” categories that dictate which stories are told by who, and continue to make prestige pictures by and about white men, knowing that they could simply check “Audience Development” and “Industry Access” boxes by filling marketing positions and internship programs with a diverse staff. Instead, the impact will be felt most by indie directors, who work on shoestring budgets, with limited resources and no guarantee of being picked up by a distributor with adequately diverse executive leadership. For them, it becomes a choice: sacrifice their shot at the industry’s highest honor (with all the career-boosting benefits an Oscar nomination entails), or conform. 

Some may shrug at that, or even see it as a net positive in a world where too many movies already exist about straight white dudes. On the other hand, the list of movies that would be shut out from Oscar contention under the “Representation” standard is pretty, well, diverse. The Hurt Locker; Boyhood; O Brother, Where Art Thou?; Birdman; The Lighthouse; 1917; Gladiator; Gone Girl: All would fail to make the cut.

That’s assuming the AMPAS rules actually go into effect, instead of imploding in a maelstrom of grasping identitarianism, opportunistic comings-out, internecine fights about which groups count as “underrepresented,” and uncomfortable questions about how the Academy intends to enforce its own standards. (As the essayist Wesley Yang noted on Twitter, the current literature suggests that sets would undergo “spot checks” for the presence of marginalized cast and crew, an idea that would be amusing if it weren’t so incredibly creepy.) This month has even introduced one riveting example of how incentivizing people to lay claim to marginalized identities can have unexpected and toxic results: Jessica Krug, a professor at George Washington University, confessed that she had been passing as a black woman from the Bronx when in fact she was born to Jewish middle-class parents in Kansas. Krug claimed that she was motivated by mental illness and childhood trauma, but it’s also clear that the charade had its perks; not only did she have access career opportunities and resources reserved for people of color, but her assumed identity granted her status and power in an academic culture where any claim of oppression holds enormous sway.

It’s not that 2024 will usher in a role-reversed reboot of the bad old days, when white-passing actress Merle Oberon pretended her own grandmother was a servant in her household to hide the truth about her heritage from racist Hollywood; it’s more that the Academy doesn’t seem to have really thought through the implications of its own guidelines. Imagine the arguments over whether Jews count as underrepresented, and if not, why. Imagine actors whipping out their 23andMe results to prove their nonwhite status. Imagine the bewildered Academy trying to nominate a Best Actor and Best Actress from a sea of young celebs who’ve all adopted nonbinary identities and they/them pronouns in order to help check the LGBT box for their films’ Best Picture nod. 

All this would be happening against a backdrop of little or no change to the actual slate of Best Picture nominees, which will continue as always to be dominated by prestige pictures from major studios with the occasional, diversity-compliant indie darling (such as Moonlight) in the mix. The new standards will do nothing to resolve the fierce and ongoing debates about representation and racism in Hollywood; movies like Green Book or The Help, which activists hated, would be considered diversity success stories under the new rules. If this is the Academy’s best play for relevance and moral authority in a rapidly shifting entertainment landscape, it’s no wonder that nobody bothers to watch the Oscars anymore.

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Judge Bumatay on Originalism in the Lower Courts: “It is our duty to apply the Constitution—not extend precedent”

Today, Judge Patrick Bumatay dissented from the denial of rehearing en banc in NLRB v. International Association of Bridge, Structural, Ornamental, and Reinforcing Iron Workers. I would commend everyone to read his careful analysis about how lower courts should approach originalism and stare decisis. I may be partial to his approach, as he cites my article on this issue.

I agree with Judge Berzon that this case should have been taken up en banc. I write separately to emphasize my views on why the Supreme Court’s decision in International Brotherhood of Electrical Workers, Local 501, A.F. of L. v. NLRB, 341 U.S. 694 (1951) (“IBEW“), is not binding in this case and why it is our duty to apply the Constitution—not extend precedent—here.

As inferior court judges, we are bound to follow Supreme Court precedent. Hart v. Massanari, 266 F.3d 1155, 1170–71 (9th Cir. 2001). After all, “[f]idelity to precedent—the policy of stare decisis—is vital to the proper exercise of the judicial function.” Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 377 (2010) (Roberts, C.J., concurring). But our fidelity is not blind. We always have a “duty to interpret the Constitution in light of its text, structure, and original understanding.” NLRB v. Noel Canning, 573 U.S. 513, 573 (2014) (Scalia, J., concurring). The same could be said of precedent that has been eroded by more recent jurisprudence.

This doesn’t mean that lower court judges can refuse to follow precedent—even if subsequent caselaw or the original meaning cast it into doubt. See Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989). Lower court judges don’t have license to adopt “a cramped reading” of a case in order to “functionally overrule” it. Thompson v. Marietta Educ. Ass’n, No. 19-4217, 2020 WL 5015460, at *3 (6th Cir. Aug. 25, 2020). Nor are we permitted to create “razor-thin distinctions” to evade precedent’s grasp. Josh Blackman, Originalism and Stare Decisis in the Lower Courts, 13 NYU J.L. & Liberty 44, 51 (2019).

But, where precedent is seriously questioned “as an original matter” or under current Supreme Court doctrine, courts “should tread carefully before extending” it. Garza v. Idaho, 139 S. Ct. 738, 756 (2019) (Thomas, J., dissenting). We can take care not to unduly expand precedents by reading them “in light of and in the direction of the constitutional text and constitutional history.” Edmo v. Corizon, Inc., 949 F.3d 489, 506 (9th Cir. 2020) (Bumatay, J., dissenting). So too with intervening Supreme Court decisions. And if a faithful reading of precedent shows it is not directly controlling, the rule of law may dictate confining the precedent, rather than extending it further. Cf. Citizens United, 558 U.S. at 378 (“[S]tare decisis is not an end in itself. . . . Its greatest purpose is to serve a constitutional ideal—the rule of law. It follows that in the unusual circumstance when fidelity to any particular precedent does more to damage this constitutional ideal than to advance it, we must be more willing to depart from that precedent.”).

In this case, he finds there is not a “razor-thin” distinction with precedent. Therefore, it should not be extended:

Given this backdrop, nothing in Supreme Court doctrine or principles of stare decisis require the extension of IBEW here. IBEW deals with picketing and this case does not. As the cases above show, this is not a “razor-thin” distinction. And as Judge Berzon ably demonstrates, IBEW cannot be squared with modern First Amendment law. See Dissent at 16 (Berzon, J., dissenting) (“Given such a sea change in First Amendment jurisprudence,” IBEW “would need to be quite directly on point to be controlling today.”).

Indeed, Judge Bumatay argues that the a careful study of the original meaning further justifies not extending this precedent. He favorably cites the work of Jud Campbell.

Also, I have doubts that § 158(b)(4)(i)(B), as applied here, would be consistent with the original meaning of the First Amendment. That Amendment pronounces that “Congress shall make no law . . . abridging the freedom of speech.” U.S. Const. amend I. While the contours of this language need further explication, and there is ongoing debate about its meaning among scholars, Justice Scalia articulated the convincing view that the First Amendment generally prevents government from proscribing speech on the basis of content, subject to “traditional categorical exceptions.” R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 382–83 (1992) (identifying obscenity, defamation, and fighting words as examples of such exceptions). Another persuasive view is that the First Amendment cemented the natural right to freely express one’s thoughts, spoken or written, subject to restrictions for the common good. See Jud Campbell, Natural Rights and the First Amendment, 127 Yale L.J. 246, 304–07 (2017). But, under this view, “the Founders widely thought that the freedom to make well-intentioned statements of one’s views belonged to a subset of natural rights . . . that could not be restricted in promotion of the public good and thus fell outside legislative authority to curtail.” Id. at 255–56. As James Madison said, “[o]pinions are not the objects of legislation.” 4 Annals of Cong. 934 (1794); see also Thomas Jefferson, A Bill for Establishing Religious Freedom (1779) (“[T]he opinions of men are not the object of civil government, nor under its jurisdiction[.]”).

Considering our growing understanding of the First Amendment’s original meaning, I question whether Congress can abridge the type of expression at issue here, especially the common catchphrase, “friends don’t let friends cross.” NLRB, 941 F.3d at 904. Such an expression seems precisely like the type of “well-intentioned statement[] of opinion” that the Founders would have thought inalienable. See Campbell, supra, at 255–56, 284. By denying rehearing en banc, we’ve passed on a valuable opportunity to examine First Amendment history and further ground our own jurisprudence in the original meaning of the Constitution.

Judge Bumatay is forming his own string cite for other judges to cite. IAB Local and Edmo are exactly right. (I blogged about Edmo here.) He also cites Judge Thapar’s decision in Thompson v. Marietta Educ. Ass’n. (Jon Adler blogged about it here.) Judge Bumatay really should have been added to the not-so-short list.

With a contrary perspective, Mike Dorf recently wrote that lower courts should disregard Supreme Court precedent that has been called into doubt.

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NIMBYs Stop Game of Thrones Author George R.R. Martin From Building the Castle of his Dreams

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Winds of Winter is not the only George R.R. Martin project that might go unfinished. On Tuesday, the Santa Fe Historic Districts Review Board turned down the famed fantasy author’s application to build a castle on his property.

Martin and his wife, through their Water Gardens Trust, had applied to build a home and seven-sided tower-like structure which would house a library, the Daily Mail first reported. That tower, in order to accommodate a stairwell and elevator, was six feet higher than what was allowed in the historic district in which the structure would be located.

Housing the elevator within the proposed tower (the application calls it the “Water Garden Keep”) would forestall the need for “unsightly box-like protrusions” on top of the Martins’ castle, their application says. It also says the elevator is necessary to accommodate the couple’s limited mobility.

The proposed castle had been revised substantially since it was first proposed (and rejected) in January 2020. Publicly viewable arched windows were removed, the Water Garden Keep’s exterior was changed from stone to a stucco adobe finish, and the building’s parapet was changed from a Gothic to Pueblo style.

These changes were enough to make the structure compliant with the district’s design standards, but the board still got to decide whether the tower deserved an exception to the district’s height limit.

Asked by a board member what the architectural style the proposed keep would be, Historic Preservation District Manager Lisa Roach replied: “It’s not a typical proposal that we see. It’s an accessory structure is all I can say.”

The structure’s unusual nature is what ultimately doomed it with both the board and the neighbors.

“It is a medieval castle, and I don’t understand how we could possibly approve it in this style,” said board member Frank Katz, according to the Santa Fe New Mexican.

The New Mexican also reports that 40 neighbors in the surrounding area signed a letter opposing the project, writing that “the fact remains that the proposed building is still a prominent castle in the middle of a residential neighborhood in Santa Fe.”

Another neighbor compared the proposed project to the fictional castle Winterfell, telling the Daily Mail that “all it’s missing is Jon Snow and a couple of dragons.”

Perhaps if Martin had a few dragons at his disposal he would have been able to fend off the opposition to his project. Instead, a historic review board is telling him his castle is not quite up to code.

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