DOJ Investigates Lawmakers Over Claims Of Insider Trading

DOJ Investigates Lawmakers Over Claims Of Insider Trading

The DOJ is investiating whether lawmakers used information obtained during confidential coronavirus briefings to liquidate stocks ahead of the largest market sell-off in decades, according to the Wall Street Journal.

Included in the probe is Sen. Richard Burr (R-NC), who sits on two committees that received in-depth briefings on the hyper-virulent disease which started in a wet market located in Wuhan, China (900 feet from a biolab experimenting with bat coronavirus).

Burr sold shares of companies worth as much as $1.7 million, according to the report, saving he and his wife at least $250,000 in losses based on their March 19 close.

The lawmaker has said he based those decisions on public information, including CNBC’s reports out of Asia at the time, and asked the Senate ethics panel to review his trading. An attorney for Mr. Burr, Alice Fisher, said Mr. Burr would cooperate in the Senate review “as well as any other appropriate inquiry.” –Wall Street Journal

“Senator Burr welcomes a thorough review of the facts in this matter, which will establish that his actions were appropriate,” said Fisher.

On March 20, Fox News‘ Tucker Carlson noted that the senator had sold “more than a million dolars in stock in mid-February after learning how devastating the Chinese coronavirus could be.”

“He had inside information about what could happen to our country – which is now happening – but he didn’t  warn the public. He didn’t give a prime time address. He didn’t go on television to sound the alarm. He didn’t even disavow an op-ed he’d written just ten days before claiming America was ‘better prepared than ever for coronavirus.”

Instead what did he  do? He dumped his shares in hotel so he wouldn’t lose money. And then he stayed silent.

Now maybe there’s an honest explanation for what he did. If there is, he should share it with the rest of us immediately. Otherwise, he must resign from the Senate and face prosecution for insider trading. There is no greater moral crime than betraying your country in a crisis, and that appears to be what happened.”  -Tucker Carlson

In response, Burr said he relied “solely on public news reports” before selling shares. 

Others who have come under fire for stock sales include Rep Sens. Kelly Loeffler (R-Ga.), James Inhofe (R-Okla.) and Dianne Feinstein (D-Calif.)


Tyler Durden

Mon, 03/30/2020 – 16:25

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Stocks Bid Into Month-End Despite Americans’ Unprecedented Scramble For Cash

Stocks Bid Into Month-End Despite Americans’ Unprecedented Scramble For Cash

Amid an ever-escalating guess at the size of pension fund re-allocations funds (latest we saw was $150 billion) into month-end, both bonds and stocks were bid early on today, but as the day wore on, bonds weakened as stocks gained (driven by record IG issuance-driven rate-locks)…

Source: Bloomberg

But while some are rebalancing into stocks, the scramble for cash among average Americans has almost never been more panicky

Source: Bloomberg

Just as notably, crude oil prices crashed to multi-decade lows today, completely decoupling from stocks (correlation crashed)…

Source: Bloomberg

The question is – how long will the bounce last? If it’s month-end, then 2008 is still in play…

Source: Bloomberg

Maybe it’s better not to play…

And most of all, some context shows that today’s ramp merely unwinds the carnage from the last 30 minutes of Friday… (note this was a 1300 points rally off overnight lows)

S&P and Nasdaq managed to erase that late-day plunge…(Note the Dow ended perfectly unch from Friday highs)

Breadth was very weak with declining volume dominating advancing volume for most of the day…

Source: Bloomberg

The Dow pushed back above the Dec 2008 lows today…

Source: Bloomberg

Defensives outpeformed cyclicals today…

Source: Bloomberg

US IG credit has dramatically outperformed Europe since The Fed promise to start buying…

Source: Bloomberg

Treasuries were bid overnight but selling pressure accelerated as the US day session wore on (month-end rebalance and record IG issuance-driven rate-locks – U.S. companies borrowed a record $109 billion, which was met with $550 billion of demand, in what one dealer called a “food fight” for new bonds, according to Bloomberg)

Source: Bloomberg

Intraday, 10Y Yields fell back to a 59bps handle before the US session sell-off…

Source: Bloomberg

Mission Accomplished for The Fed as Agency MBS dislocations have corrected…

Source: Bloomberg

The Dollar Index managed gains today (the first in 5 days and best in 7 days)…

Source: Bloomberg

Cryptos rallied today but were unable to erase the losses from the weekend…

Source: Bloomberg

Commodities were all lower today led by crude’s carnage…

Source: Bloomberg

WTI broke down to $19.27 at its lows (before bouncing back above $20.00 on the settle)…

And finally, as the oil market struggles with an unprecedented hit to demand caused by the coronavirus, its main measure of supply and demand is screaming that a historic glut is emerging.

Source: Bloomberg

As Bloomberg details, Brent crude futures for May are now trading at an incredible $13.30 a barrel discount to November prices, a deeper and more bearish super-contango than the market saw even in the depths of the 2008-09 global financial crisis. Consultants say that, as things currently stand, the world is just a few months from running out of places to stash crude.

And we note that the ‘Virus Fear’-trade started to pick up again today…

Source: Bloomberg


Tyler Durden

Mon, 03/30/2020 – 16:01

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FDA Approves Emergency Use of Hydroxychloroquine and Chloroquine to Treat COVID-19

Anecdotal evidence has suggested that the anti-malaria drugs chloroquine and hydroxychloroquine may be effective therapies for the coronavirus infections that are the cause of COVID-19. (Other data have questioned their efficacy as COVID-19 therapies.) President Donald Trump touted chloroquine as a treatment for the disease during a press conference on March 19. At that same press conference, Food and Drug Administration (FDA) Commissioner Stephen Hahn observed, “That’s a drug that the president has directed us to take a closer look at as to whether an expanded use approach to that could be done and to actually see if that benefits patients.”

The agency has evidently taken a closer look and has issued an emergency use authorization (EUA) for both compounds as experimental treatments for COVID-19. The EUA notes:

Based on the totality of scientific evidence available to FDA, it is reasonable to believe that chloroquine phosphate and hydroxychloroquine sulfate may be effective in treating COVID-19, and that, when used under the conditions described in this authorization, the known and potential benefits of chloroquine phosphate and hydroxychloroquine sulfate when used to treat COVID-19 outweigh the known and potential risks of such products.

Health care providers are authorized to use the compounds to treat hospitalized adolescent and adult COVID-19 patients weighing more than 110 pounds for whom no clinical trial is available or feasible. The recommended treatment regimen for hydroxychloroquine is 800 milligrams on the first day followed by 400 milligrams daily for four to seven days of total treatment based on clinical evaluation. The recommended treatment using chloroquine is 1 gram of the compound on day one, followed by 500 milligrams daily for four to seven days of total treatment based on clinical evaluation.

Health care providers must watch for side effects and are required to report how their patients fare to the FDA.

Ongoing clinical trials along with these EUA treatments should fairly quickly determine whether these compounds will work against the disease. Let’s hope they do.

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Texas Or Canada: Where Will Oil Hit $0 First

Texas Or Canada: Where Will Oil Hit $0 First

Looking at the future of oil prices, Goldman was downright apocalyptic in its short-term forecast, when in a note published this morning, the bank’s chief commodity strategist Jeffrey Currie speculated that as the current production glut “shock” cripples the crude transportation networks, “a producer would be willing to pay someone to dispose of a barrel, implying negative pricing in landlocked areas.” To wit:

The global economy is a complex physical system with physical frictions, and energy sits near the top of that complexity. It is impossible to shut down that much demand without large and persistent ramifications to supply. The one thing that separates energy from other commodities is that it must be contained within its production infrastructure, which for oil includes pipelines, ships, terminals, storage facilities, refineries, and distribution networks. All of which have relatively small and limited spare capacity. We estimate that the world has around a billion barrels of spare storage capacity, but much of that will never be accessed as the velocity of the current shock will breach crude transportation networks first, which we are already seeing evidence of around the world. Indeed, given the cost of shutting down a well, a producer would be willing to pay someone to dispose of a barrel, implying negative pricing in landlocked areas.

A quick look at two of the most popular landlocked oil producing areas demonstrate that Goldman is precisely right, and as the following chart shows, as of this moment Texas Midland WTI was trading at just baove $10/barrell, while the price of oil produced in the notoriously landlocked Western Canada, as represented by Canada Western Selected index, was just above $4 per barrel, or a little more than what a gallon of gas costs in California.

Looking at the chart above, when it comes to the dash for zero (and negative prices), Canada will take the gold, but Texas won’t be too far behind.

There was some good news: waterborne crudes are unlikely to suffer a similar price implosion. Again, Goldman explains why:

Waterborne crudes like Brent will be far more insulated, staying near cash costs of $20/bbl with temporary spikes below. Brent is priced on an island in the North Sea, 500 meters from the water, where tanker storage is accessible.

In contrast, WTI is landlocked and 500 miles from the water. This illustrates an important point. Shut-ins will be not be based upon where wells sit on the cost curve but rather on logistics and access. High-cost waterborne crude oil that can reach a ship (storage we have historically never ran out of), are better positioned than landlocked pipeline crude oil sitting behind thousands of miles of pipe, like the crude oils in the US, Russia and Canada. In 1998, when surpluses last breached storage capacity, it was these landlocked crude oils that were the hardest hit.

So while markets like WTI, particularly WTI Midland, or Canada’s WCS can go negative, Brent is likely to stay near cash costs of $20/bbl. Ultimately, the market never hits nameplate capacity, as other bottlenecks are also at play. During 2008 and also in this crisis, dollar funding and credit constraints that prevent oil owners from accessing storage and transportation capacity also played a role. We believe that the Fed’s actions last week alleviate some of this risk, but oil itself creates dollar liquidity given its importance in global trade and setting the price of other traded goods and another sharp drop in oil prices could create additional dollar shortages.

In other words, with most of US WTI production landlocked, while Russia and Saudi Arabia all within easy access to seaborne transit, Putin and MBS are at this very moment sharing a big toast via Zoom, and laughing at the wasteland that US shale will be in just a few weeks.


Tyler Durden

Mon, 03/30/2020 – 15:50

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Fed Shifts Start Time Of Tomorrow’s Overnight Repo 15 Mintues Earlier As Dealer Usage Plummets

Fed Shifts Start Time Of Tomorrow’s Overnight Repo 15 Mintues Earlier As Dealer Usage Plummets

Shortly before the close on Monday, the New York Fed issued a surprise announcement according to which it pushed forward the start time of tomorrow’s month and quarter-end Overnight Reverse Repo operation to 12:30 PM ET from 12:45 PM ET, while keeping the end time of the operation at 1:15 PM ET, effectively increasing the operation time from 30 minutes to 45 minutes.

Why? The Fed explains:

This change has been made to ensure the Desk has sufficient time to obtain all bids from eligible counterparties on quarter end in light of remote working arrangements of eligible counterparties.

Yeah right, because those 15 minutes will “make or break” the quarter end repo.

The real reason? As we showed last week, in a “stunning development“, Dealers had either run out of securities to pledge to the Fed, or simply chose to hold on to their TSYs and MBS (and especially the latter in light of the ongoing MBS shortage which has sparked a visious margin call spiral among mortgage servicers), perhaps with the expectation of selling these securities to the Fed at much more economic conditions.

This can be seen in the chart below, which demonstrates the collapse in TSY submissions to the Fed’s repo operations ever since QE Unlimited was launched, which also meant that instead of parking their bonds at the Fed for up to 3 turbulent months, with an avalanche of new debt coming down the pipe, Dealers could just sell them to the Fed instead.

“Why on Earth you would tie something up for three months in repo with the Fed buying,” said Ian Burdette, managing director at Academy Securities, who followed up with a very apt observation:

“I think people are getting wise to the fact that an absolute tsunami of global sovereign debt issuance is on its way. Best to sell it all to the fed now probably.”

Meanwhile, instead of worrying about the repo – which thanks to Unlimited QE is now irrelevant – the Fed shoudl be much more focused on what is going on with uptake of its reverse repo operation, which likely due to quarter-end window dressing and various other strcutural reasons (especially when it comes to Bill yielding <0%), has seen a surge in usage to a record $237BN today, up from $210BN on Friday, in a bizarre reversal of liquidity dynamics which late on Friday we described - tongue in cheek - as a "treasury shortage."

 

 


Tyler Durden

Mon, 03/30/2020 – 15:36

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Question Everything

Crises, like pandemics, don’t break things in and of themselves; they show you what’s already broken.

– Patrick Wyman

Big macro crises in any form are scary, massively disruptive, and in some cases, literally deadly. This is why governments and entrenched institutions always see such events as opportunities to further consolidate wealth and power.

The current global pandemic is no exception, as I detailed in last week’s piece: Power Grab. While it’s necessary to be aware of this reality — and to push back against it wherever possible — it’s equally important to recognize there’s a silver lining to all of this.

continue reading

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Notre Dame Law School Adopts Modified Pass/No Credit Grading System

Notre Dame Law School has adopted a modified pass/no credit grading system. I have reproduced the policy here.

On Monday, March 30, 2020, the Faculty of Notre Dame Law School approved the following exception to the Hoynes Code for the Spring 2020 Semester, in response to the COVID-19 pandemic: For the Spring 2020 semester, students would be given the option of electing to have the grades for all of their Law School courses converted to Pass/No Credit; students would have until the last class day before the start of the study period to make this election.

Terms of the Exception to the Hoynes Code:

1. The current grading system would remain in place, but students would have the option of making an all-or-nothing election to have the grades for ALL of their Law School courses converted to Pass/No Credit grades. Students would not have the option of making the election for some but not all of their Law School courses.

2. Each student would have until 5:00 p.m. (Eastern Daylight Time) on Tuesday, April 28th (the last class day before the study period) to make the election through a process to be developed by the Law School Registrar.

3. The student will make the election to the Law School Registrar only, and the faculty —including the instructor — will be BLIND to the student’s election. Instructors will also not know how many if any students in their course have elected the Pass/No Credit option. A student should not reveal his or her election to any instructors before all grades for his or her courses have been submitted.

4. Instructors will grade all students in each course on a normal basis, including in conformity with the grading policy, and only after grades are submitted will the Law School Registrar apply the Pass/No Credit election previously made by the student. For students who have made the election, any passing grade (a D or higher or a Satisfactory grade) would be converted to a Pass and any failing grade (an F or an Unsatisfactory) would be converted to No Credit. If a student who has made the election receives a grade of incomplete (I) for a given course, the Law School Registrar will apply the election after the student receives a final grade in the course. The impact of the Pass/No Credit option on GPA and honors is discussed below.

5. This option would be available to all Law School students, including LL.M. and J.S.D. students.

6. The election, if made, would apply to all Law School courses, including courses graded on an S/U basis, unless students completed all of the required coursework for a given course before March 12, 2020 (the first day when all in-person classes were suspended). For courses in which students completed all of the required coursework, including class meetings, before March 12, 2020, instructors will grade students on a normal basis.

GPA, Honors, and Other Considerations

GPA: For a student who makes the election, a grade of Pass will not be factored into the student’s semester or cumulative grade point average. If such a student receives No Credit for a given course, that No Credit will also not be factored into the student’s semester or cumulative grade point average; it will simply mean that the student will not receive credit for that course.

Honors

Honor Roll: Students who make the Pass/No Credit election will not be eligible for Honor Roll for the Spring 2020 semester.

Graduation (Latin) Honors: Students who make the Pass/No Credit election will be eligible for Graduation Honors based on their cumulative GPA, which will be calculated without factoring in any grade of Pass or No Credit received for Spring 2020 semester courses.

Dean’s Circle Fellows: Students who make the Pass/No Credit election will not be eligible for designation as a Dean’s Circle Fellow for the 2019-20 academic year. Students in their first year of studies during the 2019-20 academic year will be eligible for designation as a Dean’s Circle Fellow at the conclusion of their second year of studies, even if they make the election, if they satisfy both the 14 credit hours per semester requirement for their other three semesters of legal studies and the 20 credits hours of graded Law School courses requirement during their second year of studies.

Faculty Awards for Excellence: Faculty may still grant a Faculty Award for Excellence to a student in each course as they normally would, and a selected student will still receive that award even if the student has made the election.

Academic Good Standing:

For a student who makes the Pass/No Credit election, the academic good standing requirements of Hoynes Code section 7.2.2, and the related academic probation and academic dismissal standards of Hoynes Code section 7.2.3, will be applied based on the semester GPA of that student based on the grades reported for that student before the Law School Registrar converts those grades to Pass/No Credit.

Transcripts:

The Law School is working with the University on developing an appropriate notation to be included on transcripts of students enrolled during the Spring 2020 semester.

Other Effects of No Credit: If a student who makes the election receives No Credit for a given course, that student will be able to re-take that course at a later date (if enrolled at the Law School). If the course is a required course, the student will be required to re-take the course at a later date.

Journals: Assistant Dean Kevin O’Rear and Student Services Program Manager Christine Holst-Haley will work with the law student journals who consider first year cumulative GPA in selecting editors to modify their selection procedures in light of the proposal approved by the faculty.

Limits on Pass/Fail Courses: If a student makes the election, their Spring 2020 courses will not count toward the otherwise applicable limits on the number of pass/fail option courses found in Hoynes Code section 7.1.3.3.

Hoynes Code: If approved by the faculty, whether as proposed or in a modified form, the approved proposal would constitute an exception to any Hoynes Code provisions that would otherwise conflict with the approved proposal.

Non-Law School Classes: The grading options for law students enrolled in courses offered by other academic units, whether cross-listed at the Law School or not, are controlled by the relevant other academic unit. The Dean will therefore contact other academic units to determine if it is possible for the Pass/No Credit election to be extended to non-Law School classes for law students who make that election.

Accommodations: The Law School continues to be subject to University policies and procedures regarding students with disabilities, and will continue to implement accommodations as required by the University Office of Disability Services regardless of whether a student makes the election.

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Heterodoxy in an Emergency

Consider two recent examples of heterodox thought on COVID-19.

In a blog post, Robin Hanson (an economics professor at George Mason) was more worried than most about the novel coronavirus. He concluded that “we are probably already past this point of no return” and that one significant problem is “that our medical systems have limited capacities.” This post was published in mid-February, well before the idea to “flatten the curve” and maximize our health care response to the SARS-CoV-2 virus itself spread virally across the Internet. Hanson considered whether “controlled exposure,” that is “deliberately exposing particular people at particular times, according to a plan” might be a good way of dealing with the epidemic.

Such a plan shouldn’t just expose random people early, as they’d be likely to infect others around them. Instead, groups might be taken together to isolated places to be exposed, or maybe whole city blocks could be isolated and then exposed at once. Exposed groups should be kept strongly isolated from others until they are not longer very infectious.

Those who work in critical infrastructure, especially medicine, are ideal candidates to go early. Such a plan should only expose a small fraction of each critical workforce at any one time, so that most of them remain available to keep the lights on. If critical workers could be moved around fast enough, perhaps different cities could be exposed at different times, with critical workers moving to each new city to be ready to keep services working there.

Angry reaction predictably followed, leading to the following Hanson tweet:

Hanson was undeterred and elaborated on his proposal in a series of posts, plus a spreadsheet model, with modifications discussed here. Lately, Hanson has made a distinct but related argument, for variolation, i.e. voluntary deliberate infection at a low dose, as was used for smallpox.

Meanwhile, Richard Epstein wrote an article on March 16 entitled “Coronavirus Perspective.” The article in its current form offers the following conclusion:

From this available data, it seems more probable than not that the total number of cases world-wide will peak out at well under 1 million, with the total number of deaths at under 50,000 (up about eightfold). In the United States, if the total death toll increases at about the same rate, the current 67 deaths should reach about 5000 ….

In the original publication, he concluded that U.S. deaths would reach 500; he later attributed this to a math error, acknowledging that there was no reason to think that the United States would account for only 1% of the death rate. In the revision (on March 24), he acknowledged that his revised estimate “could prove somewhat optimistic.”

Epstein claimed that other models “underestimate the rate of adaptive responses, which should slow down the replication rate.” On one hand, Epstein’s thesis is that death rates will be low because people are taking steps to minimize contact with one another. On the other hand, he calls the measures that the government has taken “draconian,” arguing “that even though self-help measures like avoiding crowded spaces make abundant sense, the massive public controls do not.” Thus, if Epstein’s bottom-line forecast of 5,000 deaths proves roughly correct, that would not resolve the underlying question whether Epstein’s public policy recommendation was correct. If deaths are relatively low, we won’t know (though could estimate with various assumptions) whether this is because of government mandates or because of voluntary distancing. Some but not all of what the government mandates would occur voluntarily, and it’s hard to determine how much. Epstein’s forecast is falsifiable (and, many sophisticated observers believe, likely to be falsified, as “superforecasters” estimate that it is probable that there will be between 35,000 and 350,000 deaths), and if his forecast is wrong, that would cast serious doubt on his public policy recommendation.

Epstein also made an evolutionary argument, that adaptive responses such as handwashing will exert selection pressure on the virus, so that the strains of the virus that survive will tend to be less virulent strains:

Start with the simple assumption that there is some variance in the rate of seriousness of any virus, just as there is in any trait for any species. In the formative stage of any disease, people are typically unaware of the danger. Hence, they take either minimal or no precautions to protect themselves from the virus. In those settings, the virus—which in this instance travels through droplets of moisture from sneezing and bodily contact—will reach its next victim before it kills its host. Hence the powerful viruses will remain dominant only so long as the rate of propagation is rapid. But once people are aware of the disease, they will start to make powerful adaptive responses, including washing their hands and keeping their distance from people known or likely to be carrying the infection. Various institutional measures, both private and public, have also slowed down the transmission rate.

At some tipping point, the most virulent viruses will be more likely to kill their hosts before the virus can spread. In contrast, the milder versions of the virus will wreak less damage to their host and thus will survive over the longer time span needed to spread from one person to another. Hence the rate of transmission will trend downward, as will the severity of the virus. It is a form of natural selection.

One key question is how rapidly this change will take place. There are two factors to consider. One is the age of the exposed population, and the other is the rate of change in the virulence of the virus as the rate of transmission slows, which should continue apace. By way of comparison, the virulent AIDS virus that killed wantonly in the 1980s crested and declined in the 1990s when it gave way to a milder form of virus years later once the condition was recognized and the bath houses were closed down. Part of the decline was no doubt due to better medicines, but part of it was due to this standard effect for diseases. Given that the coronavirus can spread through droplets and contact, the consequences of selection should manifest themselves more quickly than they did for AIDS.

The Epstein article appears to have had greater influence on public officials than Hanson’s. The Washington Post reported, “Conservatives close to Trump and numerous administration officials have been circulating an article by Richard A. Epstein of the Hoover Institution, titled ‘Coronavirus Perspective,’ that plays down the extent of the spread and the threat.” One can speculate that the article may have affected policy, but it is hard to tell for sure.

The New Yorker today published an interview by Isaac Chotiner of Epstein, in which Epstein elaborates in particular on his evolutionary view. The interview includes parenthetical responses from infectious-disease experts and epidemiologists disagreeing with some of Epstein’s claims. For example, one expert denies that there is any “evidence that there are strong and weak variations of the coronavirus circulating.” And another states that there is no evolutionary tendency of the virus to weaken, explaining, “To the extent we see that evolution taking place it is usually over a much vaster timescale.”

There is a great deal of criticism of Epstein’s responses in the interview on Twitter, much of it by scholars I greatly admire. Some of the critique uses the episode to take a swipe at the legal academy in general. One of the most thoughtful critiques is by Rex Douglas, a data scientist. Among other points, he argues that state-of-the-art epidemiological models do take into account that R0 (the measure of infectiousness) is likely to decline over time. It’s not clear to me whether that’s because of an evolutionary tendency or simply because there are fewer people to infect. But I think that it’s a fair point that of course epidemiological models take into account how infection rates change over time.

At least to me, the exchange has been helpful in highlighting the particular areas of disagreement: Epstein, who points out that he has read widely in evolutionary theory, would expect the virus to weaken greatly through natural selection. At least a few epidemiologists, no doubt also conversant in evolutionary theory, do not believe that this is a significant consideration, and in any event, epidemiological models already account in at least some way for decreasing infectiousness over time. My own instinct at this point is to think that Epstein’s estimate of fatalities is too low and also that Epstein’s confidence in his critique was too high. But I would welcome further discussion and explanation, if for no other reason that I am curious about how much if at all evolutionary forces matter within the relevant time frame.

It is often useful for an intelligent, well-read outsider to a literature to push the experts to explain their assumptions more clearly. Perhaps the vast majority of the time, when an outsider to the literature makes a critique, it will turn out that the critique is flawed, and maybe it will waste the time of insiders who feel obliged to respond and clarify. But time spent clarifying foundational assumptions and points that a thoughtful outsider might miss is not really wasted. And every once in a while, an outsider may identify a genuine problem. Intellectual history is littered with once accepted beliefs ultimately changed as a result of the insistence of contrarians. Epstein complains in his interview that Chotiner is looking to make Epstein out to be a crackpot. I don’t think that Epstein is a crackpot, but even if he were, we all know that sometimes the crackpot hits the jackpot. If there were some major flaw in conventional thinking, we would like it to be exposed during an emergency as quickly as possible. Change within a literature often occurs over generations. Policymakers should provisionally accept widely-held views of experts, but outsiders can be helpful in probing those views.

Epstein’s article, moreover, can be credited with highlighting the point that even if the government does not mandate social distancing and lockdowns, people will not behave as they ordinarily would. Neil Ferguson originally predicted that the U.K. could suffer 500,000 deaths, but now projects more like 20,000. This is not a change in the underlying model, but rather an updated calculation based on an exogenous change in government policy. But can we really credit policy change for the entire difference? The 500,000 figure is based on a model of “what would have happened if no interventions were implemented (and Rt = R0 i.e. the initial reproduction number estimated before interventions).” But surely, Epstein is right that even absent government interventions, voluntary actions from people worried about getting sick (and worried also about then passing along their sickness) would lower the initial reproduction number. It is very difficult to disentangle reductions in the reproduction number attributable to government action from reductions in the reproduction number attributable to voluntary action, because governments will tend to act when people start to get worried.

Epstein’s work thus adds some nuance to the debate (though that nuance was not the central point and has been lost in the broader discussion). We need to consider the marginal effect of various types of government interventions, relative to the behavioral changes that people would engage in on their own. That will allow for better assessment of marginal benefits and marginal costs of particular interventions. I don’t know that I would look to epidemiologists to answer that question (though they may have produced some useful work on this issue of which I am unaware). It seems like more of a law-and-economics issue, well within Epstein’s expertise. Unfortunately, it’s also not an issue on which there exists a methodology to produce conclusive answers, at least not yet. My own instinct is different from Epstein’s here. I tend to believe that fairly draconian government interventions are justified for the time being. But that instinct is also based in part on a law-and-economics point, that there is option value to delaying the virus and waiting for better information to develop, both about governmental interventions and about medical ones.

Could Epstein have been more careful here? He did conclude his article by stating, “Perhaps my analysis is all wrong, even deeply flawed. But the stakes are too high to continue on the current course without reexamining the data and the erroneous models that are predicting doom.” Maybe this should have been his first paragraph, and maybe he should have omitted the word “erroneous,” as that seems to me a premature judgment. Perhaps one should be especially careful about such disclaimers in a time of emergency, especially when political leaders might be more inclined to trust the advice of someone who is generally aligned with them on policy issues.

But Epstein is, to my mind, one of the great legal thinkers of our age. And because legal scholarship aims to influence public policy, it is inherently interdisciplinary. Legal scholars, especially those who read as broadly as Epstein, should not stay in their lanes. And, to switch sports metaphors, they should swing for the fences, even if that means that they might strike out. Like other heterodox scholars, Epstein is unfraid of making controversial arguments, like his criticism of employment discrimination law. I don’t agree with that argument but think that public discourse is better when someone advances deeply thoughtful cases against propositions that almost all of us hold dear.

Hanson isn’t afraid to offend people either. He swings for the fences all the time and, however many strikeouts he may have accumulated, has hit at least three home runs in very different parts of the ballpark: first, with his groundbreaking work on prediction markets; second, in his discussion of the Great Filter in the context of the Fermi Paradox; and third, in his provocative dystopian analysis of a future world with many simulated brains. (I don’t mean to imply that I agree with all his work in these areas, but surely I can score an academic idea as a home run even without agreeing it.) It isn’t a coincidence that his greatest work is published outside of conventional academic journals.

Hanson included disclaimers too. He acknowledged that controlled exposure was a “disturbing” idea. He noted that the system might be implemented, albeit not as efficiently, through “volunteers.” He merely suggested that “authorities, and the rest of us, should at least consider controlled infection as a future option.” Disclaimers, it turns out, don’t do much to reduce internet outrage. Is Hanson right? His model seems plausible to me, but I haven’t examined it closely enough or heard enough from critics to assess. But we need creative ideas during a pandemic at least as much as during ordinary times. Time is critical in this fight, and if he and critics have given us a head start in analyzing unconventional strategies like variolation, perhaps that will help us better assess those strategies should we come to a point where people are desperate enough to consider counterintuitive approaches.

Disclosure: I know both Hanson (who was an interdepartmental colleague of mine when I was a law professor at George Mason) and Epstein (who was at University of Chicago when I visited there in 2005).

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Notre Dame Law School Adopts Modified Pass/No Credit Grading System

Notre Dame Law School has adopted a modified pass/no credit grading system. I have reproduced the policy here.

On Monday, March 30, 2020, the Faculty of Notre Dame Law School approved the following exception to the Hoynes Code for the Spring 2020 Semester, in response to the COVID-19 pandemic: For the Spring 2020 semester, students would be given the option of electing to have the grades for all of their Law School courses converted to Pass/No Credit; students would have until the last class day before the start of the study period to make this election.

Terms of the Exception to the Hoynes Code:

1. The current grading system would remain in place, but students would have the option of making an all-or-nothing election to have the grades for ALL of their Law School courses converted to Pass/No Credit grades. Students would not have the option of making the election for some but not all of their Law School courses.

2. Each student would have until 5:00 p.m. (Eastern Daylight Time) on Tuesday, April 28th (the last class day before the study period) to make the election through a process to be developed by the Law School Registrar.

3. The student will make the election to the Law School Registrar only, and the faculty —including the instructor — will be BLIND to the student’s election. Instructors will also not know how many if any students in their course have elected the Pass/No Credit option. A student should not reveal his or her election to any instructors before all grades for his or her courses have been submitted.

4. Instructors will grade all students in each course on a normal basis, including in conformity with the grading policy, and only after grades are submitted will the Law School Registrar apply the Pass/No Credit election previously made by the student. For students who have made the election, any passing grade (a D or higher or a Satisfactory grade) would be converted to a Pass and any failing grade (an F or an Unsatisfactory) would be converted to No Credit. If a student who has made the election receives a grade of incomplete (I) for a given course, the Law School Registrar will apply the election after the student receives a final grade in the course. The impact of the Pass/No Credit option on GPA and honors is discussed below.

5. This option would be available to all Law School students, including LL.M. and J.S.D. students.

6. The election, if made, would apply to all Law School courses, including courses graded on an S/U basis, unless students completed all of the required coursework for a given course before March 12, 2020 (the first day when all in-person classes were suspended). For courses in which students completed all of the required coursework, including class meetings, before March 12, 2020, instructors will grade students on a normal basis.

GPA, Honors, and Other Considerations

GPA: For a student who makes the election, a grade of Pass will not be factored into the student’s semester or cumulative grade point average. If such a student receives No Credit for a given course, that No Credit will also not be factored into the student’s semester or cumulative grade point average; it will simply mean that the student will not receive credit for that course.

Honors

Honor Roll: Students who make the Pass/No Credit election will not be eligible for Honor Roll for the Spring 2020 semester.

Graduation (Latin) Honors: Students who make the Pass/No Credit election will be eligible for Graduation Honors based on their cumulative GPA, which will be calculated without factoring in any grade of Pass or No Credit received for Spring 2020 semester courses.

Dean’s Circle Fellows: Students who make the Pass/No Credit election will not be eligible for designation as a Dean’s Circle Fellow for the 2019-20 academic year. Students in their first year of studies during the 2019-20 academic year will be eligible for designation as a Dean’s Circle Fellow at the conclusion of their second year of studies, even if they make the election, if they satisfy both the 14 credit hours per semester requirement for their other three semesters of legal studies and the 20 credits hours of graded Law School courses requirement during their second year of studies.

Faculty Awards for Excellence: Faculty may still grant a Faculty Award for Excellence to a student in each course as they normally would, and a selected student will still receive that award even if the student has made the election.

Academic Good Standing:

For a student who makes the Pass/No Credit election, the academic good standing requirements of Hoynes Code section 7.2.2, and the related academic probation and academic dismissal standards of Hoynes Code section 7.2.3, will be applied based on the semester GPA of that student based on the grades reported for that student before the Law School Registrar converts those grades to Pass/No Credit.

Transcripts:

The Law School is working with the University on developing an appropriate notation to be included on transcripts of students enrolled during the Spring 2020 semester.

Other Effects of No Credit: If a student who makes the election receives No Credit for a given course, that student will be able to re-take that course at a later date (if enrolled at the Law School). If the course is a required course, the student will be required to re-take the course at a later date.

Journals: Assistant Dean Kevin O’Rear and Student Services Program Manager Christine Holst-Haley will work with the law student journals who consider first year cumulative GPA in selecting editors to modify their selection procedures in light of the proposal approved by the faculty.

Limits on Pass/Fail Courses: If a student makes the election, their Spring 2020 courses will not count toward the otherwise applicable limits on the number of pass/fail option courses found in Hoynes Code section 7.1.3.3.

Hoynes Code: If approved by the faculty, whether as proposed or in a modified form, the approved proposal would constitute an exception to any Hoynes Code provisions that would otherwise conflict with the approved proposal.

Non-Law School Classes: The grading options for law students enrolled in courses offered by other academic units, whether cross-listed at the Law School or not, are controlled by the relevant other academic unit. The Dean will therefore contact other academic units to determine if it is possible for the Pass/No Credit election to be extended to non-Law School classes for law students who make that election.

Accommodations: The Law School continues to be subject to University policies and procedures regarding students with disabilities, and will continue to implement accommodations as required by the University Office of Disability Services regardless of whether a student makes the election.

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Heterodoxy in an Emergency

Consider two recent examples of heterodox thought on COVID-19.

In a blog post, Robin Hanson (an economics professor at George Mason) was more worried than most about the novel coronavirus. He concluded that “we are probably already past this point of no return” and that one significant problem is “that our medical systems have limited capacities.” This post was published in mid-February, well before the idea to “flatten the curve” and maximize our health care response to the SARS-CoV-2 virus itself spread virally across the Internet. Hanson considered whether “controlled exposure,” that is “deliberately exposing particular people at particular times, according to a plan” might be a good way of dealing with the epidemic.

Such a plan shouldn’t just expose random people early, as they’d be likely to infect others around them. Instead, groups might be taken together to isolated places to be exposed, or maybe whole city blocks could be isolated and then exposed at once. Exposed groups should be kept strongly isolated from others until they are not longer very infectious.

Those who work in critical infrastructure, especially medicine, are ideal candidates to go early. Such a plan should only expose a small fraction of each critical workforce at any one time, so that most of them remain available to keep the lights on. If critical workers could be moved around fast enough, perhaps different cities could be exposed at different times, with critical workers moving to each new city to be ready to keep services working there.

Angry reaction predictably followed, leading to the following Hanson tweet:

Hanson was undeterred and elaborated on his proposal in a series of posts, plus a spreadsheet model, with modifications discussed here. Lately, Hanson has made a distinct but related argument, for variolation, i.e. voluntary deliberate infection at a low dose, as was used for smallpox.

Meanwhile, Richard Epstein wrote an article on March 16 entitled “Coronavirus Perspective.” The article in its current form offers the following conclusion:

From this available data, it seems more probable than not that the total number of cases world-wide will peak out at well under 1 million, with the total number of deaths at under 50,000 (up about eightfold). In the United States, if the total death toll increases at about the same rate, the current 67 deaths should reach about 5000 ….

In the original publication, he concluded that U.S. deaths would reach 500; he later attributed this to a math error, acknowledging that there was no reason to think that the United States would account for only 1% of the death rate. In the revision (on March 24), he acknowledged that his revised estimate “could prove somewhat optimistic.”

Epstein claimed that other models “underestimate the rate of adaptive responses, which should slow down the replication rate.” On one hand, Epstein’s thesis is that death rates will be low because people are taking steps to minimize contact with one another. On the other hand, he calls the measures that the government has taken “draconian,” arguing “that even though self-help measures like avoiding crowded spaces make abundant sense, the massive public controls do not.” Thus, if Epstein’s bottom-line forecast of 5,000 deaths proves roughly correct, that would not resolve the underlying question whether Epstein’s public policy recommendation was correct. If deaths are relatively low, we won’t know (though could estimate with various assumptions) whether this is because of government mandates or because of voluntary distancing. Some but not all of what the government mandates would occur voluntarily, and it’s hard to determine how much. Epstein’s forecast is falsifiable (and, many sophisticated observers believe, likely to be falsified, as “superforecasters” estimate that it is probable that there will be between 35,000 and 350,000 deaths), and if his forecast is wrong, that would cast serious doubt on his public policy recommendation.

Epstein also made an evolutionary argument, that adaptive responses such as handwashing will exert selection pressure on the virus, so that the strains of the virus that survive will tend to be less virulent strains:

Start with the simple assumption that there is some variance in the rate of seriousness of any virus, just as there is in any trait for any species. In the formative stage of any disease, people are typically unaware of the danger. Hence, they take either minimal or no precautions to protect themselves from the virus. In those settings, the virus—which in this instance travels through droplets of moisture from sneezing and bodily contact—will reach its next victim before it kills its host. Hence the powerful viruses will remain dominant only so long as the rate of propagation is rapid. But once people are aware of the disease, they will start to make powerful adaptive responses, including washing their hands and keeping their distance from people known or likely to be carrying the infection. Various institutional measures, both private and public, have also slowed down the transmission rate.

At some tipping point, the most virulent viruses will be more likely to kill their hosts before the virus can spread. In contrast, the milder versions of the virus will wreak less damage to their host and thus will survive over the longer time span needed to spread from one person to another. Hence the rate of transmission will trend downward, as will the severity of the virus. It is a form of natural selection.

One key question is how rapidly this change will take place. There are two factors to consider. One is the age of the exposed population, and the other is the rate of change in the virulence of the virus as the rate of transmission slows, which should continue apace. By way of comparison, the virulent AIDS virus that killed wantonly in the 1980s crested and declined in the 1990s when it gave way to a milder form of virus years later once the condition was recognized and the bath houses were closed down. Part of the decline was no doubt due to better medicines, but part of it was due to this standard effect for diseases. Given that the coronavirus can spread through droplets and contact, the consequences of selection should manifest themselves more quickly than they did for AIDS.

The Epstein article appears to have had greater influence on public officials than Hanson’s. The Washington Post reported, “Conservatives close to Trump and numerous administration officials have been circulating an article by Richard A. Epstein of the Hoover Institution, titled ‘Coronavirus Perspective,’ that plays down the extent of the spread and the threat.” One can speculate that the article may have affected policy, but it is hard to tell for sure.

The New Yorker today published an interview by Isaac Chotiner of Epstein, in which Epstein elaborates in particular on his evolutionary view. The interview includes parenthetical responses from infectious-disease experts and epidemiologists disagreeing with some of Epstein’s claims. For example, one expert denies that there is any “evidence that there are strong and weak variations of the coronavirus circulating.” And another states that there is no evolutionary tendency of the virus to weaken, explaining, “To the extent we see that evolution taking place it is usually over a much vaster timescale.”

There is a great deal of criticism of Epstein’s responses in the interview on Twitter, much of it by scholars I greatly admire. Some of the critique uses the episode to take a swipe at the legal academy in general. One of the most thoughtful critiques is by Rex Douglas, a data scientist. Among other points, he argues that state-of-the-art epidemiological models do take into account that R0 (the measure of infectiousness) is likely to decline over time. It’s not clear to me whether that’s because of an evolutionary tendency or simply because there are fewer people to infect. But I think that it’s a fair point that of course epidemiological models take into account how infection rates change over time.

At least to me, the exchange has been helpful in highlighting the particular areas of disagreement: Epstein, who points out that he has read widely in evolutionary theory, would expect the virus to weaken greatly through natural selection. At least a few epidemiologists, no doubt also conversant in evolutionary theory, do not believe that this is a significant consideration, and in any event, epidemiological models already account in at least some way for decreasing infectiousness over time. My own instinct at this point is to think that Epstein’s estimate of fatalities is too low and also that Epstein’s confidence in his critique was too high. But I would welcome further discussion and explanation, if for no other reason that I am curious about how much if at all evolutionary forces matter within the relevant time frame.

It is often useful for an intelligent, well-read outsider to a literature to push the experts to explain their assumptions more clearly. Perhaps the vast majority of the time, when an outsider to the literature makes a critique, it will turn out that the critique is flawed, and maybe it will waste the time of insiders who feel obliged to respond and clarify. But time spent clarifying foundational assumptions and points that a thoughtful outsider might miss is not really wasted. And every once in a while, an outsider may identify a genuine problem. Intellectual history is littered with once accepted beliefs ultimately changed as a result of the insistence of contrarians. Epstein complains in his interview that Chotiner is looking to make Epstein out to be a crackpot. I don’t think that Epstein is a crackpot, but even if he were, we all know that sometimes the crackpot hits the jackpot. If there were some major flaw in conventional thinking, we would like it to be exposed during an emergency as quickly as possible. Change within a literature often occurs over generations. Policymakers should provisionally accept widely-held views of experts, but outsiders can be helpful in probing those views.

Epstein’s article, moreover, can be credited with highlighting the point that even if the government does not mandate social distancing and lockdowns, people will not behave as they ordinarily would. Neil Ferguson originally predicted that the U.K. could suffer 500,000 deaths, but now projects more like 20,000. This is not a change in the underlying model, but rather an updated calculation based on an exogenous change in government policy. But can we really credit policy change for the entire difference? The 500,000 figure is based on a model of “what would have happened if no interventions were implemented (and Rt = R0 i.e. the initial reproduction number estimated before interventions).” But surely, Epstein is right that even absent government interventions, voluntary actions from people worried about getting sick (and worried also about then passing along their sickness) would lower the initial reproduction number. It is very difficult to disentangle reductions in the reproduction number attributable to government action from reductions in the reproduction number attributable to voluntary action, because governments will tend to act when people start to get worried.

Epstein’s work thus adds some nuance to the debate (though that nuance was not the central point and has been lost in the broader discussion). We need to consider the marginal effect of various types of government interventions, relative to the behavioral changes that people would engage in on their own. That will allow for better assessment of marginal benefits and marginal costs of particular interventions. I don’t know that I would look to epidemiologists to answer that question (though they may have produced some useful work on this issue of which I am unaware). It seems like more of a law-and-economics issue, well within Epstein’s expertise. Unfortunately, it’s also not an issue on which there exists a methodology to produce conclusive answers, at least not yet. My own instinct is different from Epstein’s here. I tend to believe that fairly draconian government interventions are justified for the time being. But that instinct is also based in part on a law-and-economics point, that there is option value to delaying the virus and waiting for better information to develop, both about governmental interventions and about medical ones.

Could Epstein have been more careful here? He did conclude his article by stating, “Perhaps my analysis is all wrong, even deeply flawed. But the stakes are too high to continue on the current course without reexamining the data and the erroneous models that are predicting doom.” Maybe this should have been his first paragraph, and maybe he should have omitted the word “erroneous,” as that seems to me a premature judgment. Perhaps one should be especially careful about such disclaimers in a time of emergency, especially when political leaders might be more inclined to trust the advice of someone who is generally aligned with them on policy issues.

But Epstein is, to my mind, one of the great legal thinkers of our age. And because legal scholarship aims to influence public policy, it is inherently interdisciplinary. Legal scholars, especially those who read as broadly as Epstein, should not stay in their lanes. And, to switch sports metaphors, they should swing for the fences, even if that means that they might strike out. Like other heterodox scholars, Epstein is unfraid of making controversial arguments, like his criticism of employment discrimination law. I don’t agree with that argument but think that public discourse is better when someone advances deeply thoughtful cases against propositions that almost all of us hold dear.

Hanson isn’t afraid to offend people either. He swings for the fences all the time and, however many strikeouts he may have accumulated, has hit at least three home runs in very different parts of the ballpark: first, with his groundbreaking work on prediction markets; second, in his discussion of the Great Filter in the context of the Fermi Paradox; and third, in his provocative dystopian analysis of a future world with many simulated brains. (I don’t mean to imply that I agree with all his work in these areas, but surely I can score an academic idea as a home run even without agreeing it.) It isn’t a coincidence that his greatest work is published outside of conventional academic journals.

Hanson included disclaimers too. He acknowledged that controlled exposure was a “disturbing” idea. He noted that the system might be implemented, albeit not as efficiently, through “volunteers.” He merely suggested that “authorities, and the rest of us, should at least consider controlled infection as a future option.” Disclaimers, it turns out, don’t do much to reduce internet outrage. Is Hanson right? His model seems plausible to me, but I haven’t examined it closely enough or heard enough from critics to assess. But we need creative ideas during a pandemic at least as much as during ordinary times. Time is critical in this fight, and if he and critics have given us a head start in analyzing unconventional strategies like variolation, perhaps that will help us better assess those strategies should we come to a point where people are desperate enough to consider counterintuitive approaches.

Disclosure: I know both Hanson (who was an interdepartmental colleague of mine when I was a law professor at George Mason) and Epstein (who was at University of Chicago when I visited there in 2005).

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