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As regular readers know, I’ve been writing, blogging, and litigating about the scope of the Computer Fraud and Abuse Act (CFAA) for over twenty years.  The Supreme Court is hearing a big CFAA case this fall, Van Buren v. United States.  I figured this was an important case to chime in on, so today I submitted this amicus brief, on my own behalf, in the case.

Bonus: It discusses an old Volokh Conspiracy blog post and covers one of my favorite 1980s movies.

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If there was any doubt that the Trump administration will seize on any and every pretext to slam immigrants, it should be put to rest now. The Immigration and Customs Enforcement (ICE) just issued guidance that is using the pandemic to kick out all international students who are not enrolled in regular, in-person classes starting this fall.

These rules will penalize students whose colleges have decided to go online—without securing any discernible economic, educational, health, or security upside for America. To the contrary, in fact. So why is the administration doing this? Basically to purge as many immigrants from the country as possible before the November elections—and discourage new ones from coming in.

Most foreign students come to American on non-immigrant F-1 and M-1 visas that require them to maintain a full course load in universities approved by ICE’s Student and Exchange Visitor Program (SEVP). In order to guard against diploma mills, SEVP offers accreditation mostly to universities that offer classroom instruction and usually limits foreign students to three credit hours of online instruction per semester.

But when the coronavirus hit and colleges moved everyone to online instruction, ICE did the only sensible thing and allowed international students to finish their spring and summer semesters by taking all their classes online like everyone else without voiding their visas. However, ICE is rescinding that guidance going forward and is stipulating that international students attending online-only programs must leave the United States. If they fail to do so, they’ll face deportation and risk getting permanently barred from the country.

There are 1.2 million foreign students in the U.S. enrolled in 8,700 universities. A third of these universities had already announced plans to go fully or partially online. This means that if these students are not able to switch to colleges offering on-campus instructions, which most of them won’t be able to do because colleges don’t have vacant seats, they will be instantly out of luck. But even those who manage to switch won’t necessarily be safe. Why? Because ICE is also saying that if secondary outbreaks prompt these universities to switch to distant learning in the fall, hardly a remote possibility, it will require the students to leave mid-semester—never mind that many of them have been paying full tuition fees that run upwards of $50,000 annually at many private nonprofit colleges. But ICE pooh-poohs their predicament claiming that they can go home and continue in their programs.

But that is easier said than done given that not all countries have reliable internet connections at all times. Moreover, trying to offer online instruction across time zones and continents will pose massive challenges. Will U.S. faculty hold office hours and students attend classes in the middle of the night? Also, one major attraction of an American education is the opportunity to experience American life and build networks with faculty and interact with peers from across the world. All of that will go out of the window if these kids are forced to return home.

International students, 5.5 percent of the higher education population, pumped $41 billion into American universities and supported nearly 460,000 campus and other jobs in the 2018-19 academic year, thanks to the top tuition dollars they pay. Universities rely on those contributions to subsidize in-state tuition for American kids. They also depend on foreign graduate students to assist in classroom instruction, especially in STEM fields that Americans typically shun. Many technical, hard science programs will have a tough time operating without access to their services.

All of this means that universities can’t end their reliance on foreign students on a dime, so to speak, without hurting American students especially at a time when state governments reeling from COVID-19-related revenue losses are cutting back their contributions. So many of them will be tempted to maintain campus instruction despite the added risk to the health of faculty and students—which is why ICE’s guidance is nothing short of “horrifying,” as the American Council on Education, a higher education lobbying group, put it.

Harvard University and Massachusetts Institute of Technology, both of whom had decided to move entirely online, have already sued over ICE’s new guidance. But even if the courts stay the rules pending a final ruling, something that could take a year, many students will leave rather than live in uncertainty in America. Moreover, new students will be reluctant to enroll next fall out of fear that if Trump gets re-elected, he’ll renew his slams on them at the drop of a hat. This means that regardless of whether Trump wins or loses in November, these rules will succeed in deterring foreign students for at least yet another year—after three years straight of declining enrollment.

Trump has already used the pandemic to shut down practically all legal immigration to the country till the end of this year including high-skilled workers and the family members of Americans and permanent residents.

But this is a diabolical plan whose only purpose is to feed this administration’s obsessive and irrational hostility towards foreigners and immigrants. There is really no other explanation.

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David Hoffman and Cathy Hwang have written an article entitled “The Social Cost of Contract,” arguing that the public is a third party to every contract and considering the relevance of that in determining whether courts should enforce contracts whose performance would have been inadvisable given the Covid-19 pandemic. The article is elegantly written, situating specific questions such as the enforceability of force majeure clauses into a broader social context. Although Hoffman and Hwang do not conclude with any absolute recommendations for courts, the thrust of the article is to suggest that courts should not insist on performance of contracts when performance would exacerbate a public health crisis.

I agree with much of what Hoffman and Hwang argue. Hoffman has separately argued (with Eric Lampmann) that nondisclosure agreements suppressing information about sexual harassment ought not be enforced, and Hoffman and Hwang give other examples of contracts that are unenforceable on account of the public interest. Hoffman and Hwang also cite other literature highlighting that contracts are often written in the shadow of regulatory requirements, and more than that, regulators sometimes influence contract terms. “The general public has many reasons to intervene in private contracting–and it does, all the time,” they write (emphasis theirs). As the authors recognize, however, there is a difference between affecting private bargains by rendering certain types of bargains unenforceable ab origine or regulating in ways that affect private contracts (neither of which is much in dispute in the pandemic) and interpreting private contracts or even overriding private contract terms to accomplish public goals.

I have several reservations about the possibility of an active judicial role. First, in many pandemic contexts, performance will not occur as a result of legal restrictions. The resolution of such a case therefore allocates the loss, but won’t affect the parties’ incentives or improve public health. At least when the government bars performance, thus expressing the public interest through regulation, there is little further public interest in judicial allocation of burdens. If a state closes a hotel and so a wedding does not take place, requiring the wedding party to bear the costs of a wedding that did not occur would not advance public health interests. The only cases where expectations about damages might affect the decision whether to hold the wedding are those where the public health authorities are sufficiently uncertain about what to do that they have not banned performance. The hope must thus be that expectation of what judges will do may usefully affect primary conduct even at times where optimal public policy is contested or unclear.

Second, judges may disagree about social cost. If judges have the right to resolve contractual ambiguities based on what is in the social interest, then judges presumably must consider social interests beyond health. The COVID-19 pandemic has reinforcedthat different people have different views about what is in the social interest. Some judges might conclude that proceeding with business as usual is in the social interest and therefore favor performance, while others face nonperformance. Even if limited to health considerations, there is often room for debate. A recent Cornell study, for example, suggests that opening campus will reduce the spread of COVID-19. Should a court accepting such a result decide to impose the loss on a college that decides not to offer classes? Perhaps hosting a wedding is, all health issues considered, socially optimal, if one thinks that the wedding party will otherwise be held in a poorly ventilated home. These may well be weak arguments, but I am skeptical that judges are institutionally well situated to resolve them.

Third, adding social interests to contract interpretation increases the uncertainty about how courts will resolve cases. With greater uncertainty, there will be a greater chance of significant mutual optimism, and so more cases will go to trial, increasing litigation costs. It will take the common law a while to sort out how to apply social welfare-regarding considerations, and by the time the law is clear (if it ever is) it will be too late to give certainty for many litigants, at least during this pandemic. One might argue that so long as judges restrict themselves to cases in which contracts are ambiguous, they won’t increase uncertainty. But then there will be disputes about whether a contract is sufficiently ambiguous, just as we see in Chevron cases. Hoffman and Hwang acknowledge that our judicial system is not well situated to process millions of cases. A rule that parties should perform their contracts, at least absent clauses excusing performance, may be much more predictable and thus produce much lower litigation costs.

But I am not sure that this is right, and Hoffman and Hwang offer powerful arguments on the other side. Their work in any event is an important contribution to the small literature on interpreting contracts where performance was thwarted by the pandemic.

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Seattle is back in the business of taxing big business two years after it passed, then repealed, its controversial ‘Amazon Tax.’

On Monday, the Seattle City Council voted 7-2 to approve the “JumpStart Seattle” tax, which taxes the wages paid by businesses to employees making $150,000 or more a year. The tax applies to companies with at least $7 million in annual payroll and is projected to raise $214 million annually.

“We are in the midst of a health and economic crisis that even a strong economy like Seattle may not be able to recover from quickly,” said Councilmember Teresa Mosqueda, who sponsored the legislation, in a press release following the vote. “JumpStart Seattle will do just that—jump-start our recovery with a relief plan that centers workers, small businesses, and our most vulnerable community members.”

Provided Mayor Jenny Durkan signs the tax into law, it will go into effect next year.

In addition to the tax, the city council also passed a spending plan Monday which would allocate next year’s JumpStart revenue to replenishing any money the city borrows this year from its emergency fund. Starting in 2022, revenue from the tax will go to affordable housing, small business aid, and economic development programs.

The JumpStart tax is the final chapter in the long saga of the Seattle city government’s attempt to tax large employers in the city.

Back in 2018, socialist City Councilmember Kshama Sawant proposed a $500-per-employee head tax, which she coined the “Amazon Tax,” on companies with revenues of over $20 million. That tax was supposed to raise $75 million a year.

The proposal attracted united opposition from Seattle’s business community and a number of labor groups, who argued that it would drive jobs and business out of the city. Seattle-headquartered Amazon announced a halt to one of its downtown construction projects prior to a vote on the tax.

The city council later passed a compromise $275-per-employee head tax, which they then embarrassingly repealed a month later after business interests launched a campaign to put that tax to city voters through a ballot initiative.

The experience naturally enraged the city’s progressives, who vowed to fight on. Last year’s city elections saw Sawant win a narrow victory and a number of other progressive city council candidates defeat more moderate, business-backed opponents.

In February 2020, Sawant said she’d be bringing back her Amazon Tax. In April, she, along with Councilmember Tammy Morales, introduced a proposal for a 1.3 percent tax on wages paid by companies with at least $7 million in annual payroll expenses, estimated to rake in $500 million a year.

The Sawant/Morales tax was a tough sell politically because it was much larger than the head tax that had already been repealed and because it would tax the wages of low-income workers.

Mosqueda’s JumpStart tax has proved more politically palatable. In addition to exempting lower-income workers, it also introduces a tier of tax rates that increases for higher wage earners at larger firms. (The Seattle Times has a useful graph breaking down the different tax rates.)

The progressivity of the JumpStart tax helped win it support, according to University of Washington economist Jacob Vigdor, who told the Seattle Times, “The way this tax has been structured distributes the burden of the tax to the businesses with a greater capacity to pay, which is the economically sensible thing to do.” CrossCut reports that Mosqueda did extensive outreach to the business community and labor groups when crafting her tax proposal.

Seattle’s major business associations have still come out against the tax, arguing it will cost the city jobs. “Taxing jobs is bad public policy, and it is even more concerning as Seattle faces double-digit unemployment,” said the Seattle Downtown Association in a statement to the Times, saying that the tax should be repealed.

The two city councilmembers, Alex Pedersen  and Debora Juarez, who voted no on the JumpStart tax suggested it should be put to voters through a referendum.

Following the passage of the JumpStart tax, Sawant issued a grave warning to “Jeff Bezos and his class,” saying any repeal effort would result in the proletariat finally casting off their chains.

“If you attempt to overturn the Amazon Tax, working people will go all out in the thousands to defeat you,” said Sawant. “We cannot and will not stop until we overthrow [capitalism] and replace it with a world based instead on solidarity, genuine democracy, and equality. A socialist world.”

The threat of socialist revolution notwithstanding, there’s plenty of reasons to oppose Seattle’s new payroll tax. The possibility that companies will move or shift workers outside the city is very real, especially since the coronavirus pandemic has diminished the benefits of being located in a big city.

Imposing yet another tax on companies who’re already struggling to survive the pandemic will make Seattle’s economic recovery harder. Repealing city and county level restrictions on the development of new housing, on the other hand, is a sensible and cheap way to encourage the construction of more affordable homes.

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If there’s one consistent message coming from activists and politicians pushing the Green New Deal and massive new subsidies for renewable energy it’s that if we don’t take radical action now, life on Earth as we know it will soon be irreversibly destroyed. Greta Thunberg, Rep. Alexandria Ocasio-Cortez (D–N.Y.), and Democratic presidential nominee Joe Biden all have claimed that we have less than a dozen years left in which to save the planet.

Such fear-mongering is flat-out misleading and the findings of the scientists studying global warming don’t support such alarmist claims, according to the new book Apocalypse Never: Why Environmental Alarmism Hurts Us All. Michael Shellenberger argues that deforestation and deaths from extreme weather are actually declining, and concerns about environmental damage from plastics are fundamentally misplaced.

Shellenberger, who began his career as an advocate for more government spending on wind and solar, was eventually disillusioned after witnessing the failure of subsidies to fix the inherent drawbacks of renewables. Named a “Hero of the Environment” by Time magazine in 2008, he is an “expert reviewer” for the Intergovernmental Panel on Climate Change, whose 2018 report has been widely misinterpreted as saying we had just 12 years to stave off catastrophic climate change. Shellenberger also appeared in the 2013 documentary Pandora’s Promise, which was shown at Sundance, and featured several prominent environmentalists who have come around to see the virtues of nuclear power. 

Nick Gillespie interviewed Shellenberger about Apocalypse Never and why he believes that environmentalism has become a replacement for religion in an increasingly secular world.

Audio production by Ian Keyser.

Photo: James Arthur Photography/James Arthur/Newscom.

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