Month: August 2022

The six-month anniversary of Russia’s invasion of Ukraine is a miserable milestone few expected to reach. Early forecasts anticipated something more like six days, but half a year in, this historically bloody conflict seems nowhere near over. At summer’s end, battle lines remain roughly where they were at the beginning, and diplomatic resolution appears a distant possibility. Ukraine and Russia alike have settled in for the long haul, and so too has Washington, where a robust stream of military aid to Ukraine has lately pivoted “to a longer-term strategy to equip Ukraine to fight”—God forbid—”for years to come.”

The nature of U.S. involvement has been a compelling question throughout this war. America has spent decades blurring the lines between war and not-war in our foreign policy, so much so, I’ve argued, that it’s difficult to say if we’re “at war” in Ukraine already. Certainly, Russia says we are, and it’s hard to imagine we’d disagree were positions reversed. If Moscow helped another country kill American generals and sink our prize warships, surely we’d pursue reprisal?

And that’s the strange thing about Ukraine: The Russian regime accuses Washington of waging a proxy war, and you don’t have to concede a whit of moral high ground to the Kremlin to recognize that’s at least partly true. After all, Secretary of Defense Lloyd Austin has explicitly said Washington wants Russia to come out of this conflict “weakened,” an aim more ambitious than simply helping Kyiv repel Moscow’s unjust aggression. 

But for all the accusations, there’s been no military reprisal. Indeed, so far, there are almost no consequences at all for U.S. military involvement in Ukraine. We’ve had high fuel prices all summer, but that’s more directly the result of Western sanctions against Russia than any Russian policy. Anticipated cyberattacks so far haven’t materialized (or, at least, haven’t been disclosed), and perhaps they aren’t coming at all. American athlete Brittney Griner is facing a grossly disproportionate sentence in Russia over a drug conviction, the timing of which suggests a Ukraine connection. But, without minimizing Griner’s ordeal, if this is the extent of Russian retaliation for U.S. facilitation of its battlefield humiliations, we’re getting off scot-free.

That’s a risky lesson for Washington to learn. Obviously, no one wishes for Russian reprisal. It’s good that U.S. intervention so far has not led to the military escalation many feared. It’s good we are not suffering a NATO-Russia nuclear war. It’s good that there’s a gap between Moscow’s accusations and its actions. 

But even if you think Washington is doing the right thing in this case (current polling shows a bipartisan majority of Americans believe the U.S. should support Ukraine “until all Russian forces are withdrawn,” and only two in 10 disagree), there is an undeniable risk in teaching our government that it can wage proxy wars, including against fellow nuclear powers, without fear of significant consequence. Even with all possible caveats, even noting that this was not a war of our initiation, even recognizing the comparative moral clarity of this fight, that risk remains. 

The risk is that what has happened here will not always happen in the future. It might not continue to happen in this very war, though the revealed weakness of the Russian military is a strong reason for expecting more of the same. Yet in another fight, against a different enemy—and proxy war with China over Taiwan is the obvious scenario to consider right now—we may not be so lucky. 

This might seem like a point that doesn’t have to be made. But given the long dominance of U.S. military might and our multi-decade proclivity toward playing world police, I think it does. Being the global hegemon is a uniquely deceptive position: It can lure you into falsely believing you can do whatever you want.

Often our hegemony means great security. U.S. deterrence capabilities are remarkable and reliable, especially against state actors. Washington is frequently able to compel other governments to do its bidding.

Still, that power is not infinite, as the last 20 years of U.S. floundering in the greater Middle East made all too clear. Deterrence is not absolute, particularly when dealing with fellow great powers with whom we might fight a proxy war. Sometimes another country’s self-perceived national interest will outweigh the restraint imposed by the prospect of U.S. opposition. Sometimes, when another government accuses us of being functionally at war with them, they will respond in kind, with military action of their own. 

In short, we can’t assume the pattern we now see in Ukraine will hold. If we do, it will dangerously misinform U.S. foreign policy. In the worst case, it could lead us toward civilization-ending war.

The post Washington Is Learning the Wrong Foreign Policy Lesson in Ukraine appeared first on Reason.com.

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President Joe Biden declared yesterday that COVID-19 provides a legal basis for wiping out millions of people’s student loan debt, to the tune of hundreds of billions of dollars. Anyone making under $125,000 per year will be eligible for the student loan forgiveness program, which will allow for the erasure of up to $10,000 to $20,000 in debt per person. And any which way you look at it, this is a bad move.

There are legal reasons to be wary. Such a huge undertaking would typically be something set out in legislation approved by Congress. Biden’s basis for saying that the executive branch has the right to simply declare student loans forgiven is both egregious in its own right and troubling for the future of executive power plays.

There are pragmatic reasons to be wary. The whole claim here is that higher education has grown too expensive. But to simply write off existing student loan debt without addressing the source of the fast rise in college prices —which has a lot to do with the federal student loan program existing—is only ensuring ongoing problems.

There are economic reasons to be wary. Loan forgiveness may encourage reckless borrowing, if today’s college students think they won’t actually have to pay back their loans. And this, in turn, could lead to even higher college tuition rates. It could also be inflationary more generally, by freeing up income for tons of people who may then drive up demand for goods and, along with it, prices.

There are also moral reasons to be wary. The program amounts to a massive subsidy for middle-class Americans, as opposed to benefiting the most economically downtrodden or financially strapped. It provides a handout to many people for whom loan payments aren’t a problem now (someone making $125,000 per year can surely afford a few hundred dollars per month) or won’t be in the very near future (for instance, a doctor or lawyer on the verge of making big bucks who hasn’t quite gotten there yet). In short, the program “consumes resources that could be better used helping those who did not, for whatever reason, have a chance to attend college,” as economist Larry Summers put it on Twitter earlier this week.

One of the biggest reasons people seem to be opposed is that it offends people’s basic sense of fairness. Certainly not everyone who had to take out student loans was lazy, irresponsible, or anything of the sort. And not everyone without student loan debt is responsible or hard-working; many just lucked into having parents who could afford to pay for college. But there are many people for whom avoiding student loan debt or paying it off promptly meant making all sorts of sacrifices. Biden’s loan forgiveness program says to them that this thrift, practicality, etc. may have been for nought.

This last reason has taken the biggest beating from folks who approve of Biden’s student loan plan and are taking aim at its critics. The uncharitable summary of it is that people who suffered in avoiding or paying off student loans just want others to suffer similarly. The implication in this line of criticism is that opponents of student loan forgiveness are just kind of assholes, twirling their mustaches and shouting, “pull yourselves up by your bootstraps!” at people drowning in debt.

Someone argued to me yesterday—citing Social Security benefits for comparison—that any new entitlement program will benefit some people while leaving out others who may have benefited had it been enacted sooner. For instance, someone in his 70s when Social Security started may have stopped working sooner had it been around a few years earlier. But I don’t think this comparison holds up, since older workers excluded from a few extra years of retirement weren’t put at a professional disadvantage relative to their peers. The same can’t be said for student loan forgiveness.

And this gets at the crux of the fairness factor here, I think. It’s not just that some people made certain sacrifices—like working more hours as a student or living with parents instead of in a dorm—that made the college experience less fun. Many of the things they gave up may put them at a long-term professional disadvantage relative to those who made different decisions regarding loans.

Choosing to go to a less prestigious school. Forgoing unpaid or low-paid internships and fellowships in favor of working jobs that pay better in the short-term but provide less long-term advantage. Working for pay instead of spending more time on personal projects or research related to one’s field. Living in a cheaper city after graduation, or taking a more lucrative but less elite job right out of school. Decisions like these may have helped people avoid some student loan debt or pay off their debts more quickly while costing them other important things—the right lines on their early-career resumes, networking opportunities, professional contacts, etc. This could have a long-term effect on their professional opportunities and earnings. Meanwhile, they’re competing for work with people who maybe did the right internships or went to a better school because of student loans.

It’s not just that the latter group may have had more fun or made decisions deemed by some to be less “responsible” (which is arguable, considering the advantages these decisions may have conferred). It’s that a lot of them may have a lifelong professional advantage over the former, and perhaps the fact that they incurred loan debt mitigated this somewhat—but not anymore. And never mind that these advantages may even make them better positioned to pay off their student loans.

None of this may change anyone’s calculation about whether erasing student loan debt is ultimately good or bad policy. But maybe it will help people think twice before acting as if the tradeoffs in this calculation are all frivolous and anyone upset by them simply wants people to suffer.

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FREE MINDS

How misinformation spreads. Social media takes a lot of blame for spreading misinformation, and traditional media outlets are some of the most likely to point fingers this way. But ample research suggests that much misinformation originates from traditional sources, like newspapers or political speeches. The latest in this corpus: a study on misinformation about spiders.

“Here, we studied the global spread of (mis-)information on spiders using a high-resolution global database of online newspaper articles on spider–human interactions, covering stories of spider–human encounters and biting events published from 2010–2020,” write the authors in “The global spread of misinformation on spiders,” published in Current Biology. “We found that 47% of articles contained errors and 43% were sensationalist.”

Perhaps contrary to prevailing wisdom, bigger papers were more likely to be sensationalist. “The probability of an article being sensationalistic increased in international and national newspapers compared with regional ones,” the authors point out.

Unsurprisingly, sensationalist stories were more likely to contain misinformation.

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FREE MARKETS 

Airbnb regulation ruled unconstitutional. A federal appeals court has ruled a New Orleans regulation targeting short-term rentals (like those posted on Airbnb) is unconstitutional:

The 2019 ordinance was adopted by the New Orleans City Council in hopes of slowing the spread of “whole-home” vacation rentals, amid complaints that the rentals were driving up property costs and tax assessments, that full-time residents were leaving historic neighborhoods and that vacationers’ all-night parties and noise were often pushing the limits of New Orleans’ reputation for revelry.

A key provision of the law says that a person can get a short-term rental license only for their primary residence — a residence for which they claim a Louisiana homestead property tax exemption. The 5th U.S. Circuit Court of Appeals ruled Monday that the provision unconstitutionally restricts interstate commerce.

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QUICK HITS

"Trump pushed for vaccine approvals too fast" is the worst possible critique of the Trump administration's COVID policy. That probably saved a lot of lives. If anything approval should have been faster. https://t.co/CmnO5nqSyR

— Nate Silver (@NateSilver538) August 24, 2022

• The U.S. 5th Circuit Court of Appeals upheld a Mississippi law that denies voting rights to people who have been convicted of certain felony crimes. (Read the Mississippi Free Press on the racist roots of the law.)

• There is no national teacher shortage.

• Anti-bot campaigns come for pro-America accounts.

• California is set to ban the sale of new gasoline-powered cars, effective in 2035.

• “The Michigan Court of Appeal on Wednesday declined to take up an appeal from the Michigan House and Senate requesting a three-judge panel overturn a lower court preliminary injunction that’s stopping the enforcement of the state’s abortion ban,” reports The Detroit News.

The post The Student Loan Forgiveness Fiasco  appeared first on Reason.com.

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This new article of mine will be coming out next year in the Journal of Law and Religion, and I thought I’d serialize it here; there’s still plenty of time for editing, so I’d love to hear people’s feedback. Here’s the rest of Part I.

[* * *]

Let’s now turn to some other areas beyond pseudonymity of litigants.

[A.] Allowing Subpoenas Used to Identify Defendants

So far we have discussed people who want to call on the coercive power of the court system without having to name themselves as plaintiffs. But people may also want to stop coercive subpoenas aimed at uncovering their identities as potential defendants. Those people’s concerns are often just about being fired or professionally blacklisted if they are identified as having publicly criticized their employer, or about being retaliated against by the government if they are identified as having publicly criticized government officials.[1] But sometimes the defendants also argue that they would be ostracized by their religious communities.[2]

Some defendants in lawsuits claiming copyright infringement by viewers and sharers of pornographic films, for instance, have sought pseudonymity based in part on the argument that “having my name or identifying or personal information further associated with the [porn film] is embarrassing, damaging to my reputation in the community at large and in my religious community”[3] (though it’s not clear how much weight that argument had in the courts’ decisions). Likewise, a potential defendant in a copyright case brought by the Jehovah’s Witnesses sought anonymity in part because “if Watch Tower discovers his identity, the revelation of his identity would damage or destroy his relationships with friends and family who are active members of the Jehovah’s Witness community”—”he has been part of the Jehovah’s Witness community his whole life, and so the pain of social exclusion would be overwhelming.”[4] A similar argument was made by an Orthodox Jewish blogger (“Orthomom”) whose identity was being sought, as a potential libel defendant, via a subpoena directed to her blog hosting company.[5]

Courts will sometimes allow defendants to resist a subpoena even apart from the effects on the defendants in their religious communities, especially if the court concludes that the lawsuit is likely to be legally unfounded[6] and the lawsuit is over “political, religious, or literary speech.”[7] But the question remains: Should such threat of stigma specifically within a religious community be part of the analysis, as the defendants in the just-cited cases argued?[8]

Note that here, unlike with plaintiff-side anonymity, the defendants often do seek to hide their identities even from their litigation adversaries, and not just from the public. And if the court concludes that plaintiff has a viable legal claim, then it would presumably deny the defendant’s request for total anonymity, since the plaintiff must be entitled to identify the defendant to gather information needed to allow the plaintiff’s case to go forward—for instance, information needed to establish the defendant’s state of mind, or to eventually satisfy a judgment against the defendant. Nonetheless, the court could still order that the defendant’s identity be revealed only subject to a protective order thar bars the plaintiff from revealing the information to others[9] (or perhaps even bars the plaintiff’s lawyers from revealing the information to plaintiff[10]).

[B.] Disclosing Information About Political Contributions and Political Petition Signatures

Political contributions—either to candidates or to independent advocacy groups that seek to influence elections—often have to be disclosed under campaign finance laws, and are then made available to the public. The same is true in many states for petition signatures (whether for initiative, referendum, recall, or candidate qualification).[11]

The Supreme Court has held that donor or signer information could be treated as confidential if there is sufficient evidence of likely “harassment” or “reprisals” against donors,[12] including firing by employers.[13] It’s not clear just what might qualify as harassment or reprisals, but some donors or signers might argue that they face a risk of ostracism by their religious community or even excommunication if their identities become known. (Imagine, for instance, people who would like to donate to a pro-abortion-rights initiative, or to sign such a petition, but are afraid of being shunned by their or their family’s religious group, which believes abortion is murder.)

[C.] Public Records

The possible reactions of a person’s religious community can likewise potentially affect judgments about anonymity in public records.[14] This is especially so as to license applications: For instance, New York law requires a license to possess a firearm, and the licenses are public records unless (among other things) the licensing offer finds that “the applicant has reason to believe he or she may be subject to unwarranted harassment upon disclosure of such information.”[15] Applicants could presumably claim, by analogy to the pseudonymity cases, that they belong to a pacifist religious community that frowns on firearms (or at least handguns),[16] and that disclosing their applications might prompt “unwarranted harassment” from coreligionists.[17]

Likewise, some states treat liquor licenses as public records.[18] These applications may have to include the names of individual corporate officers and shareholders,[19] and even if they just have the names of the corporate or LLC owner, public record documents for those entities will generally include the name of corporate officers. Some people might be reluctant to have their connection to alcohol businesses publicized, because they might be afraid the publicity will lead them to be condemned by their coreligionists. Public records laws may leave room for government agencies to accommodate such desire for privacy, if the laws have exceptions for when disclosure would produce “unwarranted harassment”[20] or would be “a clearly unwarranted invasion of privacy,” judged by “the customs, mores, or ordinary views of the community.”[21]

Marriage licenses are also public records in many states.[22] Some applicants might want the records concealed on the grounds that many in their religious community would condemn their particular marriage (e.g., because community members condemn interfaith marriages, or reject divorces and view a remarriage as bigamous).

Finally, more generally, public records laws can be used to disclose a wide range of other contacts between people and the government (such as arrest reports). In some situations, these disclosures could similarly jeopardize people’s standing in their religious communities, and public agencies might argue that they should redact those people’s names when releasing information in response to public records requests.[23]

 

[1] See, e.g., In re Anonymous Online Speakers, 661 F.3d 1168, 1173 (9th Cir. 2011) (discussing the “fear of economic or official retaliation”)

[2] For an example of the threat of such ostracism, levied against the writer of anonymous letter, see Brief of Appellee Rabbi Jack Bieler, Hager-Katz v. Mevlin J. Berman Hebrew Academy, 2010 WL 4890009, *7 (Md. Ct. Spec. App. Oct. 8, 2010) (quoting the rabbi’s letter):

This past Shabbat I suggested that this incident should inspire all of us to be extremely careful about engaging in Lashon HaRa [i.e., derogatory speech]. But in the event that the author’s identity can be incontrovertibly established, we think it additionally appropriate that this individual be welcomed neither into our synagogue nor our homes until such a time that she can demonstrate to the community’s satisfaction that full repentance has been achieved.

[3] See, e.g., In re BitTorrent Adult Film Copyright Infringement Cases, 296 F.R.D. 80, 90 (E.D.N.Y.), report & recommendation adopted sub nom. Patrick Collins, Inc. v. Doe 1, 288 F.R.D. 233 (E.D.N.Y. 2012)

[4] In re DMCA Subpoena to Reddit, Inc., No. 3:19-mc-80005-SK, at 4 (N.D. Cal. May 17, 2019).

[5] See Memorandum of Law of Proposed Intervenor “Orthomom” in Opposition to Petitioner’s Application for Pre-Commencement Disclosure, Greenbaum v. Google, Inc., No. 102063/07, 2007 WL 4162535, at (N.Y. Sup. Ct. N.Y. Cty. Mar. 13, 2007), granted, 18 Misc. 3d 185 (N.Y. Sup. Ct. 2007) (granting motion on the grounds that Orthomom’s posts weren’t libelous as a matter of law, and not discussing the religious ostracism concerns):

[S]ignificant community norms in the Orthodox Jewish community disapprove of criticizing leaders, and particularly of making those criticisms in ways that bring Jews or Judaism into disrepute outside the community. Critics and their families can be shunned, even deprived of their livelihoods because many Orthodox Jews work for businesses that are run by fellow Orthodox Jews, or that depend on Orthodox customers. . . . Some of Orthomom’s readers have specifically taken her to task for spreading “lashon hara,” or evil talk. Thus, Orthomom faces a serious risk within her community if, as a result of Greenbaum’s petition for discovery, she is identified as the author of these criticisms of wrongdoing within the community.

[6] Doe v. Cahill, 884 A.2d 451, 460 (Del. 2005); Dendrite Int’l, Inc. v. Doe, 775 A.2d 756, 760–61 (N.J. Super. Ct. App. Div. 2001).

[7] Compare Obi Pharma, Inc., v. Does 1-20, No. 16CV2218 H (BGS), 2017 WL 1520085, *3 (S.D. Cal. Apr. 27, 2017) (“Cahill itself involved political speech and appears to be reserved for ‘political, religious, or literary speech.'”), with Ciabattoni v. Teamsters Loc. 326, No. N15C-04-059 VLM, 2018 WL 2418388, *3 (Del. Super. Ct. May 29, 2018) (“Plaintiff’s argument that Cahill only applies to political speech is without merit.”).

[8] See, e.g., Mobilisa, Inc. v. Doe, 170 P. 3d 712, 720 (Ariz. Ct. App. 2007) (concluding that, in consider whether to enforce a subpoena in such a case, courts should look beyond just the legal validity of the plaintiff’s claims and also engaging in a “a balancing step” in which they could consider, among other things, “the potential consequence of a discovery order to the speaker”); In re Indiana Newspapers Inc., 963 N.E.2d 534, 552 (Ind. Ct. App. 2012) (same).

[9] See, e.g., In re BitTorrent Adult Film Copyright Infringement Cases, 296 F.R.D. 80, 90 (E.D.N.Y.), report and recommendation adopted sub nom. Patrick Collins, Inc. v. Doe 1, 288 F.R.D. 233 (E.D.N.Y. 2012).

[10] See, e.g., Strike 3 Holdings, LLC v. Doe, No. 20CIV4501WFKVMS, 2021 WL 535218, *7 (E.D.N.Y. Feb. 12, 2021).

[11] See, e.g., Doe v. Reed, 561 U.S. 186 (2010).

[12] Id. at 200; Brown v. Socialist Workers ’74 Campaign Comm., 459 U.S. 87, 100 (1982).

[13] Brown, 459 U.S. at 99.

[14] I use “anonymity” and “pseudonymity” largely interchangeably here, as do the cases dealing with pseudonymity in litigation; whether it’s sealing a license application entirely (which would in effect provide for anonymous licensing), or replacing a litigant’s or applicant’s name with “Jane Doe” or initials or the like, the point is that the person’s name will be concealed from the public (though, in litigation, not from the adversary, see supra note 8).

[15] N.Y. Pen. L. 400.00(5)(b)(iii).

[16] See, e.g., Amish America, Do Amish Use Guns?, https://ift.tt/37p5XMB (“Amish will not bear arms against others, but they do use firearms for hunting and other purposes”).

[17] I set aside here the special case of when parental notification requirements for abortion can be overridden because a court is persuaded that such parental notification would be against the child’s best interests. Compare Planned Parenthood, Sioux Falls Clinic v. Miller, 63 F.3d 1452, 1460 (8th Cir. 1995) (holding that such exemptions from parental notification are constitutionally required), with Planned Parenthood of Blue Ridge v. Camblos, 155 F.3d 352, 367 (4th Cir. 1998) (holding the contrary). (Even if Roe v. Wade and Planned Parenthood v. Casey are overruled, such questions would likely still arise under many states’ abortion laws.) Presumably when there is such a best-interests override, the anticipated reactions of parents—and whether judges would see those reactions as excessive and therefore harmful to the child—would be considered, and that would include religiously motivated reactions. But this would presumably limited to the attitudes of the parents, whether religious or not, and wouldn’t focus on the reactions of their religious community more broadly.

[18] See, e.g., Wash. State Liquor & Cannabis Bd., On Premises, Licensees, https://ift.tt/6xo7fCk.

[19] See, e.g., Cal. Dep’t of Alcoholic Beverage Control, Individual Personal Affidavit, https://ift.tt/56PnejN.

[20] See, e.g., Freedom Watch, Inc. v. Mueller, 453 F. Supp. 3d 139, 157 (D.D.C. 2020) (applying “unwarranted harassment” test under FOIA), appeal dismissed, No. 20-5071, 2020 WL 4931696 (D.C. Cir. July 30, 2020)

[21] Michigan Fed’n of Teachers & Sch. Related Pers., AFT, AFL-CIO v. Univ. of Michigan, 481 Mich. 657, 662 (2008) (cleaned up).

[22] Compare, e.g., Vt. Stat. Ann. § 5132 (treating marriage licenses as public records) with Cal. Family Code §§ 500–511 (generally allowing for confidential marriages, so long as the parties have lived together before marriage).

[23] Cf. Holy Spirit Ass’n for Unification of World Christianity, Inc. v. U. S. Dep’t of State, 526 F. Supp. 1022, 1034 (S.D.N.Y. 1981) (withholding the names of people who had alleged misconduct on religious group’s part, because “[t]o disclose the names could subject these individuals to the fear of harassment and needless humiliation”).

The post Protecting People from Their Own Religious Communities: Subpoenas, Political Disclosures, Public Records appeared first on Reason.com.

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