Month: May 2021

As I wrote last year, a Cincinnati policeman sued for libel over a post that accused him “of possibly being associated with white supremacy or of being racist after spotting a video and picture of him allegedly flashing the ‘ok’ sign at a City Council meeting … held to address concerns by those in the Black Lives Matter Movement.” In the process, two unusual things have happened:

1. The judge responded by issuing a preliminary injunction ordering the defendants not to “publiciz[e], through social media or other channels, Plaintiff’s personal identifying information,” which apparently includes the policeman’s name. I think this is a classic prior restraint; in January, the Ohio Supreme Court agreed to review it. (I filed an amicus brief in the case through the UCLA First Amendment Clinic, on behalf of various law professors and media and advocacy groups.)
2. The judge also allowed the policeman to litigate the case pseudonymously (under the pseudonym M.R.), and allowed one of M.R.’s affidavits to be redacted. Her rationale was that identifying M.R. might lead someone to physically attack him.

I’m happy to say that Wednesday, the Ohio Supreme Court also agreed to review the pseudonymity and sealing decision, in two consolidated cases, State ex rel. Cincinnati Enquirer v. Shanahan and State ex rel. Volokh v. Shanahan. Many thanks to our excellent pro bono counsel Jeffrey M. Nye (Stagnaro, Saba & Patterson), whose help has been indispensable as to both those claims, and who has done the bulk of the work on the second one.

Note that our civil justice system generally operates with open records, and with people litigating under their own names. You can read more about that argument in our memorandum, but here’s an excerpt:

Open courts are a critical component of a functioning democracy. Public access to the courts “gives assurance that established procedures are being followed and that deviations will become known.” State ex rel. The Beacon Journal Publishing Co. v. Bond, 98 Ohio St.3d 146, 2002-Ohio-7117, ¶16, quoting Press-Enterprise Co. v. Superior Court (1984), 464 U.S. 501, 508 (“Press-Enterprise I“). As a result, “Court records are presumed open to public access.” Sup.R. 45(A).

This [Ohio] Superintendence Rule is a codification of the fundamental right of public access to courts that is found in the common law. See, e.g., In re T.R. (1990), 52 Ohio St.3d 6, 16 n.9 (observing that traditionally civil actions involving adults “are presumptively open to the public” at common law); Doe v. Megless, 654 F. 3d 404, 408 (CA3 2011) (“One of the essential qualities of a Court of Justice is that its proceedings should be public.”) (internal markup omitted); Woyt v. Woyt, 12th Dist. Cuyahoga nos. Nos. 107312, 107321, and 107322, 2019-Ohio-3758, ¶67. (“It should only be in the rarest of circumstances that a court seals a case from public scrutiny. When a litigant brings his or her grievance before a court, that person must recognize that our system generally demands the record of its resolution be available for review.”).

That right of public access to the courts is also enshrined in the First Amendment to the US Constitution. See, e.g., Press-Enterprise Co. v. Superior Court, 478 US 1, 8-9 (1986) (“Press-Enterprise II“) (finding that a constitutional right of access presumptively attaches to any proceedings or documents that “experience and logic” show to have been historically open); Cincinnati Gas and Elec. Co. v. General Elec. Co., 854 F. 2d 900, 906 (CA6 1988) (“the touchstone of the recognized right to access” judicial proceedings under the First Amendment is whether the court’s “coercive powers” are “exercise[d]”).

That right is also enshrined in the Ohio Constitution and in the rules promulgated by this Court. See Ohio Const., Sec. 16, Art. I (“All courts shall be open ….”); State ex rel. The Repository v. Unger (1986), 28 Ohio St.3d 418, 423-424 (the Ohio Bill of Rights’ “‘open courts’ mandate[ was] inspired by a profound distrust of secret judicial proceedings. Indeed, it is often said that justice cannot survive behind walls of silence. Democracy blooms where the public is informed and stagnates where secrecy prevails.”) (Celebrezze, C.J., concurring); Civ.R. 10(A) (“Every pleading shall contain a caption setting forth … the title of the action. In the complaint the title of the action shall include the names and addresses of all the parties, but in other pleadings it is sufficient to state the name of the first party on each side with an appropriate indication of other parties.”); Doe v. Bruner, 12th Dist. Clinton no. CA2011- 07-013, 2012-Ohio-761, ¶5 (Civ.R. 10(A), like its federal counterpart, “demonstrates the principle that judicial proceedings, civil as well as criminal, are to be conducted in public.”) (internal markup omitted).

The right of access extends to documents filed with the court, see Sup.R. 44(B) (defining “court records” as including “case documents,” which in turn includes “information in a document submitted to a court or filed with a clerk of court in a judicial action or proceeding, including exhibits”), but the right is not limited to accessing filed documents. It also extends to the identity of parties. See Megless, 654 F.3d at 408 (“Identifying the parties to the proceeding is an important dimension of publicness. The people have a right to know who is using their courts. A plaintiff’s use of a pseudonym runs afoul of the public’s common law right of access to judicial proceedings.”) (internal markup and citations omitted). See also State ex rel. Cincinnati Enquirer v. Hunter, 1st Dist. Hamilton no. C-130072, 2013-Ohio-4459, ¶20 (the public has a clear legal right to access court records, “including the full names of” parties to court proceedings, “not just the initials”).

The right of access exists at all stages of the proceedings, see State ex rel. The Repository v. Unger, 28 Ohio St.3d 418, 421 (1986) (while most public-access cases discuss the right to access “trials,” “we hold that the right to a public trial pursuant to the United States and Ohio Constitutions extends to pretrial proceedings.”), and for both criminal and civil cases. See id. at 425 (concurring opinion of Celebrezze, C.J.).

The right of access also exists simultaneously with the proceedings, not merely retrospectively. As the federal Fourth Circuit Court of Appeals explained in Doe v. Public Citizen, 749 F. 3d 246, 272 (CA4 2014), “The public’s interest in monitoring the work of the courts is subverted when a court delays making a determination on a sealing request while allowing litigation to proceed [secretly].” That court explained that “Because the public benefits attendant with open proceedings are compromised by delayed disclosure of documents,” it was important to “underscore … and emphasize that the public and press generally have a contemporaneous right of access to court documents and proceedings.” Id. (emphasis added). Other courts have said that each day that case documents remain unavailable is, in effect, “a separate and cognizable infringement of the First Amendment.” Grove Fresh Distrib., Inc. v. Everfresh Juice Co., 24 F.3d 893, 897 (CA7 1994) (superseded on other grounds by FRCP 5).

The right to know the identity of litigants is especially important when the litigant is a public official, as M.R. is, see Soke v. The Plain Dealer (1994), 69 Ohio St.3d 395, 397 (“police officers are public officials”), and when the litigation relates to the public official’s performance of his official duties (as M.R.’s litigation does; see Nye Affidavit Exhibit A (M.R.’s complaint) at ¶1, 16). See Garrison v. Louisiana, 379 U.S. 64, 77 (1964) (there exists, and the First Amendment protects, “the paramount public interest in a free flow of information to the people concerning public officials, their servants.” The public has not just a right but an obligation to monitor how public officials operate public institutions, see Doe v. Public Citizen, 749 F.3d at 271 (“Indeed, the public has a strong interest in monitoring not only functions of the courts but also the positions that its elected officials and government agencies take in litigation.”), and that includes both the public court system and police officers, both of which dispense justice in the public’s name.

That interest extends to how a public official conducts litigation, and conducts himself in litigation (including but not only his truthfulness in sworn statements), see Soke at 398, and the First Amendment interests do not abate “merely because an official’s private reputation, as well as his public reputation,” may be affected. Garrison at 77. See also id. (“Few personal attributes [of a public official] are more germane to fitness for office than dishonesty, malfeasance, or improper motivation, even though these characteristics may also affect the official’s private character.”); Unger, 28 Ohio St.3d at 424 (Celebrezze, C.J., concurring) (litigation “should take place under the public eye, not because the controversies of one citizen with another are of public concern, but because it is of the highest moment that those who administer justice should always act under the sense of public responsibility, and that every citizen should be able to satisfy himself with his own eyes as to the mode in which a public duty is performed”).

Every one of these factors shows that Relator Volokh (and the public as a whole) has a clear legal right to access these court records. They are presumptively open to the public. See Sup.R. 45(A). They are also traditionally open to the public, see In re T.R., 52 Ohio St.3d at 16 n.9 and Doe v. Megless, 654 F. 3d at 408-409 (discussing “the traditional rule of openness”), and “experience and logic,” Press-Enterprise II, 478 U.S. at 9, dictate that the public have access to records and proceedings that have historically been open.

The public has a right to know when the courts exercise “coercive power” in the public’s name, Cincinnati Gas and Elec., 854 F. 2d at 906, and in M.R.’s case Respondent exercised perhaps the ultimate coercive power available in civil proceedings—a prior restraint. See Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 609 (1976) (Brennan, J., concurring in reversal of prior restraint) (“Prior restraints fall on speech with a brutality and a finality all their own.”). The sealing of the court records impedes the public’s right and duty to “monitor” the courts and public officials—to know the parties (and especially the public officials) who are using the court system, what they are using it for, what evidence supports their claims, and whether justice is being appropriately administered. See Public Citizen at 271; Garrison at 77; Unger at 424….

[To justify an exception to this right of access, there must be] “real-world evidence” from the plaintiff; “generalized fears regarding the contention that” the plaintiff’s “safety is at risk” is not enough, DeAngelis at *9, and neither is a “generalized notion that [the plaintiff] would be exposed to public ridicule or harassment.” Franklin County at *7.

Again, M.R.’s claims are nearly the polar opposite of matters of “utmost intimacy” [that might justify pseudonymity]. A public official’s performance of his official duties, and that official’s use of the court system to punish criticism of his performance of his official duties, are among the paradigmatic examples of matters of public interest, not “utmost intimacy.” See discussion of Soke, Garrison, Public Citizen, and Unger, supra Part 1(A). This is particularly true where the public official is the plaintiff rather than the defendant. See Doe v. F.B.I., at 218 F.R.D. at 259 (“By initiating an action for damages based on the FBI’s disclosure of Plaintiffs confidential File, Plaintiff has chosen to bring a private matter into the public eye.”). M.R. made the choice to seek redress in the public court system. The resolution of that dispute must be public, and cannot be had under a pseudonym.

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When the horses run Saturday evening in the Kentucky Derby, there’s a good chance more people than any point in recent history will have a bet on the race. In the eight months since the pandemic-delayed 2020 race, legalized online sports betting is quickly being normalized. Voters, politicians, and regulators are increasingly allowing sports betting.

It’s actually easier in many states to bet on horse racing than on other sports, since horse racing was exempt from the 1992 federal law that banned most sports betting. But six states (and Washington, D.C.) still allow no betting at all on horse racing. The regulations vary widely in other states, with some allowing online betting but others only letting people bet at certain casinos. North Carolina, for example, doesn’t allow bets at horse tracks and only allows bets at two tribal casinos. Texas does not allow online bets on horse racing, but visitors to racetracks can bet on in-person races and on races simulcast from elsewhere.

Without an online option, people may have to travel miles to place a bet on the Kentucky Derby, or try their luck with offshore sportsbooks. But bettors seem to prefer convenient, legalized online gambling and shouldn’t have to worry about those options. New Jersey, for example, has a robust casino scene, but more than 80 percent of its sports bets are still taken online.

As for other sports, only nine states allow widespread online betting with multiple sportsbooks. Two other states (including gambling mecca Nevada) allow online betting but only after a user has registered in person at a casino. Several locales only offer one sportsbook for users to place bets with, which can lead to problems for bettors. In Washington, D.C., for example, the only citywide sportsbook is run by the lottery, and the lines offered to bettors are way worse than in neighboring Virginia, where there are multiple sportsbooks. Others only allow sports betting in-person at casinos.

Thankfully, online gambling may soon come to several big states, including Florida and New York. Wyoming legalized online sportsbooks in April, and will even let users bet using cryptocurrency.

Still, there are many states where anti-gambling sentiment runs deep. Utah, for example, allows no betting on horse racing and is one of just three states with no legislation introduced to allow betting on other sports.

For years, sports betting was illegal nationwide (with an exception for horse racing) under the Professional and Amateur Sports Protection Act of 1992. The Supreme Court changed all that in 2018 when it ruled that the federal law was a violation of the 10th Amendment, thus giving states the option to make their own gambling laws. 

So if people win big on Saturday (or lose but still have fun doing it), they can be thankful that politicians and regulators saw fit to allow adults to spend their money betting on the ponies. Perhaps the people in power will realize that convenient online betting should be allowed for all sports, and not just horse racing.

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5/1/1871: Knox v. Lee decided.

 

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One of the most important things economists can do in a pandemic is not forget what we know. We know that central planners don’t have enough information and insight about the lives and activities of 330 million people to plan those lives in a thoughtful way. We know the problems that emerge when you distribute something valuable by giving it away. We know that government officials face bad incentives. We know that externalities pose problems for the straightforward “leave it to the market” viewpoint, but that large government interventions create new problems. In the rush to make pandemic policy, too many of these lessons were cast aside.

Central Planning

One of the most important controversies of the 20th century was the economic calculation debate. In his 1922 book, Socialism, Ludwig von Mises argued that without markets, central planners would not know how to “calculate.” Specifically, they wouldn’t know how many of various goods to produce, how to produce them, and whom to allocate them to. In the 1930s and 1940s, Mises’ student Friedrich Hayek advanced the argument by noting the ways an economy depends on dispersed information that exists in the minds of millions of people. This information about individuals’ “circumstances of time and place,” he wrote, could not be captured by a central planner. Hayek’s most famous contribution to the debate was his 1945 article “The Use of Knowledge in Society,” published in the American Economic Review. That article led modern Hayekians to use the phrase “local knowledge” as a shorthand for Hayek’s “circumstances of time and place.”

By the end of the Cold War, most economists—even some socialists—were acknowledging that Mises and Hayek had won the debate: The Soviet planners had failed because they had embarked on a task that could not succeed.

But in the COVID-19 era, a lot of policy makers have let this lesson slip their minds. While few have advocated full-blown state socialism, many have forgotten the more general truth that officials don’t have enough information to make detailed plans about people’s lives.

Take Gavin Newsom, the first governor to impose a statewide lockdown. The California Democrat listed 16 infrastructure sectors deemed so essential that they would not have to lock down. Restaurants, hairdressers, gymnasiums, and schools, not being among them, were compelled to close. So were large swaths of the retail economy. But Newsom did not base these regulations on a sophisticated understanding of what is essential and what is not. He couldn’t. No one has that understanding, for the reasons Hayek laid out long ago. The list of essential industries came from an old script; it was not highly correlated with the relative value of various industries and was not closely based on risks of spread.

What was missing from the discussion is something known only in the minds of the humans involved: the value of what was lost. Measuring the loss of gross domestic product (GDP) doesn’t quite do it, because the private sector component of GDP is valued at market prices but the value consumers put on goods and services typically exceeds the sticker price. (Economists refer to the value minus the price as consumer surplus.) Gatherings of more than a few people at funerals, for example, were prohibited; many mourners surely valued the gathering they had to miss at more than the ceremony’s price.

Central planners tend to come up with one-size-fits-all policies even when the evidence shows a large range of “sizes.” With the lockdowns, the most extreme instance of that may be the decision in various jurisdictions to close schools to in-person instruction. Even if, like me, you aren’t a fan of government schools, they arguably create at least one large valuable service: day care. So shutting them down—while paying full, or close to full, salaries to public school teachers—took away one of the most valuable services the institutions provided, while shifting the costs onto parents.

Whether or not one ultimately agrees with it, one can understand the decision to close schools in March and April of last year. But as more data came out, it became increasingly clear that students ages 15 or younger had only a tiny risk of dying from COVID-19. The latest data from the Centers for Disease Control and Prevention (CDC) shows that from January 1, 2020, to February 17, 2021, only 140 U.S. residents under age 15 died from the disease—just 0.03 percent of the overall COVID-19 deaths. During the 2019–20 flu season, according to the CDC, about 434 U.S. children under age 18 died from the flu. Yet no one advocated closing schools over that.

Of course, there is the risk of transmission from children to teachers. But teachers in Sweden, which avoided school shutdowns, had a slightly lower fatality rate than I.T. technicians. That comparison is relevant because many I.T. technicians can and do work from home, and probably did so increasingly after the worry about the coronavirus became widespread.

What about the risk of transmission from school children to their parents or other family members? If you’ve paid attention to recent protests in California and elsewhere, you’ll realize that many families are eager to take that risk.

Moreover, the comparison between private schools and public schools is telling. In a January 2021 article in Axios, Erica Pandey notes that only 5 percent of private schools were “virtual” last fall, with presumably 95 percent being in person. That contrasts with the 62 percent of students in public schools who started school in the fall online. The difference is wonderful for the private school kids and tragic for many of those in public schools, but those with local knowledge and local control were most able to get kids back into classrooms.

The pathologies of central planning also played out with the COVID-19 vaccines. In early May, four economists—Susan Athey of Stanford, Michael Kremer of Harvard, Christopher Snyder of Dartmouth, and Alex Tabarrok of George Mason—wrote an op-ed in The New York Times titled “In the Race for a Coronavirus Vaccine, We Must Go Big. Really, Really Big.” It advocated two major forms of federal spending for a vaccine. One, which they called a “pull incentive,” was a commitment to buy 300 million courses of vaccine at a price of $100 per person. The second, which they called a “push incentive,” was a guarantee of “partial reimbursement for production capacity built or repurposed at risk and partial reimbursement as they achieve milestones.”

The authors didn’t discuss how the vaccine should be distributed once the federal government paid for it. Presumably they wouldn’t favor letting the drug companies sell a vaccine to the public after being paid by the federal government; that would have created an uproar. By default, their not mentioning distribution probably left most readers thinking they wanted the federal government to distribute the vaccine.

The good news is that the feds are not distributing the vaccine. The bad news is that state governments are deciding who gets it. Furthermore, no one pays for it, so we lack a price system. Without prices, there are huge lines to get vaccinated; people who barely value the vaccine sometimes get it ahead of people who value it a lot; and the incentive for those administering the vaccine to do so quickly is lower than it would be in a free market.

Could it have been different? Yes. On January 11, 2020, Yong-Zhen Zhang of China distributed the virus’s genetic code; two days later, the Moderna lab in Massachusetts formulated one of the vaccines now being used. That was more than three months before the economists’ article in The New York Times. So even without federal subsidies, Moderna would have been ready to sell the vaccine by the time it actually did so in late December. Then it could have distributed it to front-line health care workers and older people in nursing homes for, say, $20 a pop and sold doses to a lot of the rest of us for more. If the prices were too high for some people to afford, the government could have helped low-income Americans pay for the vaccine without involving itself in the distribution process.

The Food and Drug Administration’s power to say no to drugs and vaccines that it thinks haven’t been sufficiently tested for safety and/or efficacy is also a form of central planning. Without that power, we could have had the vaccine earlier. Even if the agency’s power to “just say no” to drugs were restricted to its pre-1962 powers, when it could insist on safety but not on efficacy, we would have had the vaccine months earlier. That would have saved tens of thousands of lives.

Incentives

Another fundamental insight from economics—one that is arguably the basis of almost every other economic insight—is that incentives matter. Decision makers whose rewards are closely tied to the value their decisions create will tend to make decisions that create, or at least allow, a lot of value. They will sometimes fail, but they will try hard to make good decisions.

On the other hand, decision makers whose rewards are unrelated to the value of the decisions they make will make good decisions much less often. Even more perversely, if their decisions benefit only narrowly defined interest groups, such as government workers, their decisions might well destroy value.

Does this sound familiar? Consider Anthony Fauci’s guidance to the American public early in the pandemic, from his perch on the White House Coronavirus Task Force, that there was no need to wear a mask. Later, Fauci conceded that this wasn’t true; he had said otherwise, he maintained, to ensure an ample supply of masks for health care workers who needed them more than the average American. He didn’t seem to take account of the damage that would do to the federal government’s credibility.

Credibility is particularly important during a fast-moving pandemic. But Fauci would be paid the same $417,608 annually no matter what he said.

Moreover, the issue of incentives is relevant to the school opening issue discussed above. Private schools depend on tuitions and gifts to stay in business. Public schools, by contrast, get funded whether they teach in person or on Zoom. And public school teachers are typically paid full salaries even if they teach from home.

Externalities

The strongest argument for lockdowns is that when one person passes the virus on to another, he creates a “negative externality”—economists’ term for a cost that someone imposes on others that wasn’t accounted for when the person decided to act. The classic example is air pollution from a factory. The plant spews smoke into the air; it makes its way to tens of thousands of lungs; and, absent liability, fines, or agreements, the factory owner has little or no incentive to care.

If the factory’s smoke entered the lungs of workers voluntarily laboring at the factory, though, that would not be classified as an externality. Whatever the lowest wage they would have been willing to work for in the absence of the smoke, that wage will be somewhat higher with the smoke. The factory owner can then decide whether it’s cheaper to reduce the smoke or to continue as usual but pay higher wages.

Why do I note that caveat? Because what is sometimes described as a COVID-19 externality is not necessarily one.

Consider a customer going to a bar and knowing that there’s a risk he could get infected. He has an incentive to take account of that risk. The other customers in the same position have an incentive to take account of the risk. The owner, knowing that some customers will be worried, has an incentive to take account of the risk. Private property helps “internalize” the externality.

It doesn’t fully internalize it, because there are many bars, many restaurants, many gyms. So people leaving the first bar might spread the virus elsewhere, imposing a cost on patrons and workers at those other bars, restaurants, and gyms. But much of it is internalized.

In a recent paper, the George Mason economists Peter T. Leeson and Louis Rouanet note another way COVID-19 externalities differ from pollution. The polluter typically doesn’t worry about the pollution that blows downstream. Many people, by contrast, do worry about being in contact with others and either infecting or getting infected by them. One need only look at the huge voluntary changes people made in their lives to see how important this factor is. Well before the first lockdown, Americans canceled trips and conferences and quit going to indoor restaurants and bars. On a smaller scale, people going about their business in town wear masks, and if they don’t—and sometimes even if they do—they try to maintain a decent space between themselves and others, especially if those others are unmasked.

To the extent there is an externality, we should also remember a point made by Nobel-winning economist Ronald Coase: The person who suffers from pollution downwind from a factory would not suffer if he weren’t there. That observation has led economists in Coase’s tradition to the concept of “least-cost avoider.” Economists tend to focus on the efficient outcome, and the efficient outcome requires looking at who has the lower cost of reducing or eliminating the externality. When people live near an airport, for example, the cheaper solution might be to have airplanes produce less noise. But it might instead be for homeowners to install double-pane or triple-pane windows.

In this pandemic, governments have chosen to prevent a huge number of interactions among people who are at low risk of suffering from the disease. Given that the risk of death by COVID-19 for older people with comorbidities is orders of magnitude higher than the risk for the general population, the lower-cost solution would probably have been for the elderly to isolate themselves.

That has a lower cost for two reasons. One is sheer numbers: It’s easier for 40 million people to isolate than for more than 300 million people to isolate. The other reason is that elderly people with comorbidities are more likely to be retired or to work from home. So their loss from staying in their homes is low.

Moreover, it wouldn’t necessarily require a mandate that the elderly isolate. They could do so if they wish, and most probably would choose to do so. But governments should not insist—as New York, New Jersey, and Pennsylvania did—that nursing homes readmit people who test positive for the virus.

Just as even paranoids can have real enemies, even optimists can have real grounds for hope.

I think almost all of us were surprised at how quickly most governors and many mayors moved to close down major sectors of the economy. This was a really large attack on economic freedom, the largest in my lifetime, and it happened within days. In most cases, executives did it with zero consent from legislatures. They used existing law to the limit and, some legal scholars say, beyond the limit. I doubt those officials typically thought in March 2020 that we would still be locked down in January 2021. But the lockdowns took on a life of their own.

Recall, though, an earlier anti-liberty episode that was not nearly as shocking as the lockdowns. In 2005’s Kelo v. New London, the U.S. Supreme Court gave its blessing to a city government’s use of eminent domain to expropriate property from homeowners and transfer it to a private entity, the New London Development Corporation. This sent shockwaves through the country. The Institute for Justice, which represented the losing side before the Supreme Court, has noted that the decision “sparked a nation-wide backlash against eminent domain abuse, leading eight state supreme courts and 43 state legislatures to strengthen protections for property rights.”

Could we see a similar response to the lockdowns? Already there have been some moves at the state level to limit governors’ lockdown powers. A bill that passed both the House and the Senate in Ohio would have limited the Ohio Department of Health’s power to quarantine and isolate people, restricting it to only those who were directly exposed to COVID-19 or diagnosed with the disease. Similarly, in Michigan, the Senate and House passed a bill to repeal a 1945 law that Gov. Gretchen Whitmer had used to impose the state’s rather extreme lockdowns. Both bills were vetoed, but I doubt that will be the end of the story.

Even if it doesn’t happen until this particular pandemic is over, there’s good reason to believe that some state legislatures will want a say in future decisions. Whatever the case for letting governors move so quickly early last year, that case gets weaker and weaker the longer the lockdowns last. At some point, legislators just might roll back those powers. Or so we can hope.

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