Court Upholds Injunction Barring Distribution of Material Recorded at National Abortion Federation Conference

In National Abortion Fed’n v. Center for Medical Progress, decided Friday, the Ninth Circuit (Judges Sidney Thomas, Margaret McKeown, and Richard Clifton) upheld the constitutionality of a permanent injunction that ordered the Center for Medical Progress and David Daleiden not to distribute material that they had recorded at NAF conferences:

The Supreme Court has held that First Amendment rights may be waived upon clear and convincing evidence that the waiver is knowing, voluntary, and intelligent. Janus v. AFSCME (2018). Defendants knowingly, voluntarily, and intelligently waived any First Amendment rights in disclosing the information they obtained at the NAF conferences by signing the agreements with NAF. Daleiden voluntarily signed the agreements, and testified that he was familiar with the contents. The agreements unambiguously prohibited him from making records, disclosing recordings, and from disclosing any information he received from NAF. His waiver of First Amendment rights was demonstrated by clear and convincing evidence….

I think this is likely correct, for reasons discussed here and here. Here’s a portion of an earlier District Court decision quoting the specific nondisclosures agreements:

It is NAF policy that all people attending its conferences (Attendees) sign this confidentiality agreement. The terms of attendance are as follows:

1. Videotaping or Other Recording Prohibited: Attendees are prohibited from making video, audio, photographic, or other recordings of the meetings or discussions at this conference.

2. Use of NAF Conference Information: NAF Conference Information includes all information distributed or otherwise made available at this conference by NAF or any conference participants through all written materials, discussions, workshops, or other means….

3. Disclosure of NAF Materials to Third Parties: Attendees may not disclose any NAF Conference Information to third parties without first obtaining NAF’s express written consent ….

The court also upheld the district court’s finding that defendants had violated the injunction and were thus guilty of contempt of court:

The district court did not err in finding that Daleiden created a video containing the enjoined footage and uploaded that video to CMP’s YouTube channel….

Cooley and Ferreira were bound by the preliminary injunction, as Daleiden’s attorneys, agents, and as parties in active concert or participation with Daleiden…. Cooley and Ferreira received adequate notice. They were apprised of the possibility of civil sanctions in late May, and the contempt hearing was held in mid-July. They had approximately six weeks to prepare. Shortly before the hearing, they were informed that the district judge was only considering civil sanctions…. Cooley and Ferreira were subject to civil sanctions—not criminal ones…. Thus, they were not entitled to procedural safeguards beyond notice and an opportunity to be heard…. Cooley and Ferreira do not fall within the “narrow circumstances” that would permit them to contest the legality of the underlying injunction by disobeying it…. The district court did not err in concluding that Cooley and Ferreira did not have an objectively reasonable basis for believing that the injunction did not apply to them.

The post Court Upholds Injunction Barring Distribution of Material Recorded at National Abortion Federation Conference appeared first on Reason.com.

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CNN Boss Warns ‘Unsettled’ Staff To Prepare For ‘More Changes’

CNN Boss Warns ‘Unsettled’ Staff To Prepare For ‘More Changes’

CNN Boss Chris Licht’s efforts to restore credibility to the far-left, ratings-challenged network is far from over.

According to multiple reports, Licht has warned employees to brace for “more changes” following the departure of Reliable Sources host Brian Stelter.

I want to acknowledge that this is a time of significant change, and I know that many of you are unsettled,” said Licht during a Friday morning editorial call, according to the Hollywood Reporter. “There will be more changes and you might not understand it or like it all.”

According to a June Axios report, Licht has been preparing to boot on-air personalities who can’t break free of their crippling Trump Derangement Syndrome.

CNN’s new boss, Chris Licht, is evaluating whether personalities and programming that grew polarizing during the Trump era can adapt to the network’s new priority to be less partisan.

Why it matters: If talent cannot adjust to a less partisan tone and strategy, they could be ousted, three sources familiar with the matter tell Axios.

Details: Licht wants to give personalities that may appear polarizing a chance to prove they’re willing to uphold the network’s values so that they don’t tarnish CNN’s journalism brand.

  • For on-air talent, that includes engaging in respectful interviews that don’t feel like PR stunts. For producers and bookers, that includes making programming decisions that are focused on nuance, not noise. -Axios

We will continue covering media stories, including on TV, when warranted,” Licht reportedly said on the Friday call, in response to concerns that the network may no longer cover media issues following Stelter’s ouster, adding that the Reliable Sources newsletter will be revived under reporter Oliver Darcy.

“I really appreciate all that Brian has done to build the media beat for CNN. He’s a great human being and a good person. I wish him all the best on his new venture,” he added.

That said, the Daily Beast reached out to CNN, which confirmed Licht’s comments, but said they don’t reflect any specific changes.

“We’re constantly changing things and making decisions,” they added.

Since Licht took over in the wake of ex-boss Jeff Zucker’s unceremonious firing over an office romance with his top lieutenant Allison Golust (who’s also gone), he’s cut loose a swath of staffers, and changed several editorial guidelines – including reducing the use of “Breaking News” for on-air banners, and the use of less partisan terms to describe election fraud claims.

A source also told the Beast that Licht’s recent decisions may have more to do with billionaire mogul and influential WarnerDiscovery shareholder John Malone, who told CNBC last year that he’d “like to see CNN evolve back to the kind of journalism that it started with, and actually have journalists, which would be unique and refreshing.”

“Everything about this rollout points to John Malone and [Discovery CEO] David Zaslav,” said a source familiar with the situation, adding “Chris Licht did not want to do this.”

Either way, looks like more CNN employees may have to learn a new skill.

Tyler Durden
Sat, 08/20/2022 – 18:00

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Investors Have Now Spent $5 Billion Pursuing The “Holy Grail Of Energy”

Investors Have Now Spent $5 Billion Pursuing The “Holy Grail Of Energy”

By Alex Kimani of Oilprice.com

What do The Dark Knight Rises, Back to the Future, Oblivion, and Interstellar all have in common? They are sci-fi blockbusters that showcase a technology that scientists consider to be the Holy Grail of Energy: Nuclear fusion. Theoretically, two lone nuclear reactors running on small pellets could power the entire planet, safely and cleanly. That’s the promise of nuclear fusion. So, why are we still relying on fossil fuels? What’s stopping us from building these reactors everywhere?

After all, scientists have been working on nuclear fusion technology since the 1950s and have always been optimistic that the final breakthrough is not far away. Yet, milestones have fallen time and again and now the running joke is that a practical nuclear fusion power plant could still be decades away.

Well, the past few years have witnessed a resurgence in the field with a handful of startups setting up shop to make nuclear fusion an everyday reality. Interestingly, the vast majority of the sector’s funding has come from the private sector rather than public investments.

According to the second global fusion industry report published by the Fusion Industry Association (FIA), private investment in fusion technology hit $4.7 billion in total, dwarfing the $117 million of public investment. Also, the current year is proving to be a watershed moment for fusion technology, with the amount of funding in 2022 more than doubling the industry’s entire historic investment to the tune of $2.83 billion.

Fusion Startups

To date, Commonwealth Fusion Systems has bagged the largest amount of funding for a fusion startup. Back in December, the Massachusetts-based fusion startup snagged more than $1.8 billion in the largest private investment for nuclear fusion yet from a plethora of big-name investors including Microsoft co-founder Bill Gates, George Soros via his Soros Fund Management LLC, and venture capitalist John Doerr.

Commonwealth Fusion System is in good company.

On Nov. 5, Helion Energy announced that it had raised $500 million in its latest fundraising round, making it the second-largest-ever single fundraising round for a private fusion firm. Helion has a chance to surpass Commonwealth Fusion System since its latest round of funding includes an additional $1.7 billion tied to certain performance milestones. Meanwhile, Canada’s General Fusion has closed a $130 million fundraising round that was oversubscribed. General Fusion plans to launch an even bigger fundraising effort soon.

Google and Chevron participated in a $250-million funding raise for TAE Technologies, a nuclear fusion startup with an unconventional strategy, back in June. Since then, TAE has raised a total of $1.2 billion.

It’s a sign of the industry growing up,” General Fusion Chief Executive Christofer Mowry has told the Wall Street Journal. 

Various fusion companies are pursuing different designs for fusion reactors, though the majority rely on fusion that takes place in plasma. Commonwealth Fusion has successfully tested the most powerful fusion magnet of its kind on Earth that would hold and compress the plasma.

Commonwealth Fusion Systems is collaborating with MIT to build their fusion reactor. The team has planned a fusion experiment they have dubbed Sparc which is about 1/65th the volume of the International Thermonuclear Experimental Reactor (ITER). The experimental reactor will generate about 100MW of heat energy in pulses of about 10 seconds – bursts big enough to power a small city. The team anticipates that the output will be more than twice the power used to heat the plasma thus overcoming the biggest technical hurdle in the field: positive net energy from fusion. The Sparc team has set an ambitious target to have the reactor running in about 15 years.

But why have scientists so far failed at replicating a natural process that powers the stars in our universe?

Extreme Challenge

Turns out that the conditions necessary for nuclear fusion to take place present an extreme challenge for us earthlings. 

Fusion works on the basic concept of forging lighter elements into heavier ones. When two hydrogen atoms are smashed together hard enough, they fuse to form helium. The new atom is less massive than the sum of its parts, with the balance converted to energy in the E=MC2 mass-energy equivalence.

Ok, that’s a bit simplistic since hydrogen atoms do not fuse together directly but rather in a multi-step reaction. Anyway, the long and short of it is that nuclear fusion produces net energy only at extreme temperatures – in the order of hundreds of millions of degrees celsius. That’s hotter than the sun’s core and far too hot for any known material on earth to withstand.

To get around this quagmire, scientists use powerful magnetic fields to contain the hot plasma and prevent it from coming into contact with the walls of the nuclear reactor. That consumes insane amounts of energy. 

Stars have it easy in this regard thanks to their immense masses and powerful gravitational fields that hold everything together. For instance, the sun is 333,000 times the mass of the Earth with a gravity ~27.9 times that of Earth.

Unfortunately, every fusion experiment so far has been energy negative, taking in more energy than it generates thus making it useless as a form of electricity generation. 

Getting the initial fusion reaction is not a problem – keeping it going is, not to mention that building nuclear reactors takes some extremely sophisticated feats of engineering.

International Megaproject

But now scientists are confident that they are close to building a nuclear reactor that will produce more energy than it consumes. 

The Saint-Paul-les-Durance, France-based upcoming International Thermonuclear Experimental Reactor (ITER) is the world’s largest fusion reaction facility that aims to develop commercially viable fusion reactors.

Funded by six nations including the US, Russia, China, Japan, South Korea, and India, ITER plans to build the world’s largest tokamak fusion device, a donut-shaped cage that will produce 500 ME of thermal fusion energy. 

The device will cost ~$24 billion with a delivery date set at 2035. The giant machine – the biggest fusion machine ever built – will weigh in at an impressive 23,000 tonnes and will be housed in a building 60 meters high.

So, what’s different this time around?

Scientists have successfully developed a new superconducting material – essentially a steel tape coated with yttrium-barium-copper oxide, or YBCO, which allows them to build smaller and more powerful magnets. This lowers the energy required to get the fusion reaction off the ground.

According to Fusion for Energy – the EU’s joint undertaking for ITER – 18 niobium-tin superconducting magnets aka toroidal field coils will be used to contain the 150 million degrees celsius plasma. The powerful magnets will generate a powerful magnetic field equal to 11.8 tesla, or a million times stronger than the earth’s magnetic field. Europe will manufacture 10 of the toroidal field coils with Japan manufacturing nine.

However, it will be another decade before a full-scale demonstration power plant will be built using lessons learned from ITER. The industrial fusion power plants will thereafter be connected to the grid.

The ITER site construction is nearly 80% complete.

With all that said… it seems nuclear fusion remains (but hopefully not forever) over a decade away.

Tyler Durden
Sat, 08/20/2022 – 17:30

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UC Berkeley Student Housing Co-Op Bans White People From Common Areas

UC Berkeley Student Housing Co-Op Bans White People From Common Areas

A UC Berkeley off-campus housing co-op has banned white people from entering common spaces in order to protect people of color (POC) from so-called “white violence.”

As first reported by The College Fix and confirmed elsewhere, house rules for the 30-room “Person of Color Theme House” leaked to Reddit read: “Many POC moved here to be able to avoid white violence and presence, so respect their decision of avoidance if you bring white guests.”

White guests are not allowed in common spaces,” reads the rule under “Guests in Common Spaces.”

Via Berkeley subreddit

The top comments in the notoriously liberal subreddit noted the obvious racism:

In order to beat racism we must first become racists ourselves!” wrote one user, /u/Educational-Net303.

Also banned from the POC House:

Avoid bringing parents/family members that express bigotry,” adding “Queer, Black, and Indigenous members should not have to avoid common spaces because of homophobic or racist parents/family members.”

Via The College Fix

Of note, the facility is not run by UC Berkeley, as Assistant Director of Media Relations Adam Ratliff told the outlet, adding that it’s “not the role of the campus” to comment on what they do.

“As this involves an off-campus non-affiliated landlord, the campus has no ability under the Code of Student Conduct to discipline the landlord,” said Ratliff.

The Person of Color Theme House, a five-story, 30-room home that can accommodate up to 56 students, exists to serve “low-income, first generation, immigrant and marginalized students of color.”

It’s part of the Berkeley Student Cooperative, a nonprofit housing cooperative established to provide affordable housing to Bay-area college students.

Since it was established in 2016, the POC house has faced its share of internal problems.

One former member wrote in a Medium article that the house has become known for its “call-out culture” perpetuated by “the lack of intersectionality.”

Several members have been criticized for being white/white passing, aligning themselves with whiteness, or allowing white violence in the house,” she wrote.

Stephen Ross, cooperative experience manager for the Berkeley Student Cooperative, told The College Fix that “neither the BSC nor the POC house has an official policy” excluding white guests from common spaces. -The College Fix

“White people can and do live in POC house, but the focus for POC house is providing a safe and supportive living environment for people of color,” said Ross – though he added that each of the 20 BSC houses “have their own culture and practices” that develop ovver time, adding that members actively work toward “not making Whiteness central to the experience for members living in the house.”

Tyler Durden
Sat, 08/20/2022 – 17:00

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Illegal Transaction?: Shaquille O’Neal’s Crypto-Mixer Move Just Crossed The Line…

Illegal Transaction?: Shaquille O’Neal’s Crypto-Mixer Move Just Crossed The Line…

Authored by Scott Hill via BombThrower.com,

Basketball Entrepreneur, Shaquille “Big Sexy” O’Neal just crossed the line.

Here’s the Etherscan page for Shaq’s NFT project showing the sanctioned, illegal transaction.

The US Treasury announced sanctions applied to Tornado Cash transactions beginning last Monday.

I’m not suggesting that Shaq’s done anything wrong, but this is an example of why the Treasury’s attack on Crypto mixing services via sanctions is unworkable.

Who Gets Invited To The Crypto Mixers?

Mixers are tools within the Cryptocurrency ecosystem that allow users to deposit tokens, combine them with other people’s tokens, and then withdraw to an unrelated wallet. They can be used simply for privacy reasons, or it can be used to hide the tracks of illicit funds.

The US Treasury was obviously focused on the latter when it sanctioned Tornado Cash, with an estimated $455M washed through Tornado over the last few years by North Korean hacker group Lazarus

I’m not defending the ability to hack and launder money, but you can walk the line if one can actually be laid down. Lazarus has been a scourge on the Crypto industry since at least 2017 and I would love nothing better than to see them dealt with effectively and severely. But that’s the problem…

The solution to Crypto hacks needs to be effective or there’s no point.

According to Chainalysis’ research on the topic, for every criminal use of crypto mixers, there appears to be a legitimate use. So a large part of the pushback on this round of sanctions is to do with preserving privacy tools in an increasingly aggressive surveillance state that jeopardizes citizens’ legitimate need for privacy in everyday life. 

Privacy is normal and needs to be defended.

Among notable legitimate and extremely necessary uses of privacy tools that have come out since the sanctions announcement are Ethereum founder Vitalik Buterin using Tornado Cash to donate money to Ukrainians. This reduced their risk. Blockchain developers can also use untraceable funds to seed new projects without exposing their entire net worth.

However, this article isn’t about privacy. There’s plenty written about that elsewhere. I’m talking about why sanctions aren’t the right tool for this problem. 

Sanctions Didn’t Stop Party Crasher Lazarus

This isn’t the first mixer the US has sanctioned. In May, the Treasury sanctioned Blender.io, another mixing service that had also been used extensively by Lazarus group. In that case, the sanctions worked well to shut down the service.

They had no meaningful effect on the Lazarus group who simply kept hacking and moved to the next mixer.

Blender.io was a custodial mixer. Users deposited funds into a centralized custodian who would then mix your funds and return them. The people running the service were targeted by sanctions and shut down. 

Tornado Cash is structured differently. Rather than having a centralized custodian making decisions it’s simply a smart contract hosted on the Ethereum blockchain which holds funds prior to mixing and withdrawal. It’s just a piece of code that will continue running indefinitely and doing what it was designed to do. No one that can take it down. It is an immutable smart contract. 

Tornado Cash is Bitcoinesque. It cannot be changed. It cannot be removed. 

The Treasury seems to not really be aware of this distinction. The actual text of the sanctions has identified a range of wallet addresses associated with the smart contract as being prohibited to transact with. Treasury hasn’t identified any specific people or organizations, other than a website that hosts a front end for accessing the service. That makes this the first time the Treasury has sanctioned code, rather than people or corporations.

Enforcement: “Buzzkill” US Treasury Just Doesn’t Get It

How will this be enforced? No one really knows, but so far Circle has frozen USDC currently held in the smart contract awaiting withdrawal. Circle’s CEO doesn’t seem very happy about being forced to do this. There are also significant amounts of Ethereum and Wrapped Bitcoin also held in the smart contract.

BitGo, the issuer of Wrapped Bitcoin can’t freeze their tokens and Ethereum also can’t be frozen at the protocol layer. The only logical way that US based companies like Coinbase can comply with sanctions is to prevent tokens that have been through Tornado Cash from being deposited onto their platforms.

Which raises a huge issue. Because tokens can’t be frozen on the protocol layer, these tokens are free to move around in the Ethereum DeFi ecosystem prior to deposit on Coinbase. Regular users will have a very hard time knowing whether or not tokens that they receive are going to be accepted with major US based companies.

We don’t have any guidance from the Treasury on how this is supposed to be dealt with, but I imagine there are currently extremely frustrated calls between Crypto exchanges and the Treasury department trying to sort out this issue without breaking Ethereum.

The Treasury department might have just accidentally broken Ethereum fungibility.

Do I think that is the likely outcome here? No, not at all. But it does speak to how recklessly uniformed and uncaring the US Treasury is becoming regarding the collateral damage of using sanctions to solve every problem. There doesn’t appear to have been any consultation with major Washington based Crypto education groups like Coin Center and the DeFi Education Fund.

Will the US Treasury be educated enough to make restrictions and reform possible. We don’t yet know how strict the Treasury will instruct US corporations to be about blocking deposits from Tornado Cash. Using blockchain records, it’s perfectly possible to trace Tornado Cash use through several transactions. It’s less possible to do the same through a DeFi system which inherently mixes up funds so that their origin can’t be ascertained.  

The maximum enforcement would be to block all deposits from DeFi because some deposits would have touched Tornado Cash at some point in time.

This highlights how useless sanctioning a medium of exchange really is. Usually transactions with a particular party are the sanctioned activity. This is what it means to have effective measures against cybercrime. These sanctions won’t shut down Tornado Cash and they won’t stop Lazarus Group. They have the potential to cripple Ethereum, if they’re applied strictly. It’s fundamentally a losing game. The USTreasury is playing whack-a-mole with privacy tools. 

So what happens when a government enacts an absurd law that can’t be enforced and doesn’t really make any sense?

People immediately break the law.

Guilty By Association: Shaq, Fallon And Others Get Dusted

Numerous celebrities and notable Crypto figures including Shaq, Jimmy Fallon, Brian Armstrong the CEO of Coinbase, Crypto Exchange cold wallets and numerous others got dusted by Tornado Cash transactions.

Dust attacks aren’t new, they’ve been around as long as I’ve been in Crypto. They describe when a wallet gets sent useless or harmful tokens without their consent. There is no need to accept Crypto transactions, they just show up when someone sends them to your wallet. 

Someone with a balance held in Tornado Cash started sending small Ethereum transactions to a range of known celebrity wallet addresses without their approval or knowledge. On the first day of sanctions over Tornado Cash. 

Did Shaq violated sanctions? Arguably yes.

Sanctions violations are strict liability offenses. There doesn’t need to be any intention to perform a transaction with the sanctioned party. There doesn’t have to be any benefit gained by transaction. All that needs to be shown is that a transaction occurred.

There is a defense that best efforts were taken to comply with sanctions. The prosecuting body will look at what steps were taken to avoid breaching sanctions, that will affect their likelihood to prosecute and the severity of the punishment. But what could Shaq have done to avoid breaching sanctions?

There is nothing that anyone could have done to avoid breaching sanctions by receiving unsolicited Tornado Cash transactions.

Obviously Shaq and Jimmy Fallon are not going to get prosecuted for sanctions violation because someone else sent them some Ethereum, but the fact that these celebrities will need to be excused for something that is arguably a breach of US sanctions according to the letter of the law is a big problem. 

If The Rules Are A Bluff, What Happens Next?

The sanctions are at best ineffective. Tornado Cash is the second mixer that has been sanctioned because it was used by Lazarus. The first set of sanctions just meant that Lazarus moved to using Tornado Cash instead of Blender.io. I imagine that due to the lack of enforceability of this round of sanctions, they won’t even stop Lazarus from using Tornado Cash as their mixer of choice. 

Will it change how Crypto exchanges treat mixed funds? Unlikely. Major US exchanges already had a responsibility to refuse shady deposits under existing anti-money laundering provisions. There were already reports earlier this year of Coinbase refusing to credit deposits directly from mixers or funds that had recently been through a mixer. 

What is the point of sanctioning Tornado cash if it doesn’t shut down the service or slow down Lazarus group?

Well it will likely prevent law abiding US citizens from accessing a financial privacy tool for non-criminal purposes. Fight for the Future compared the sanctions to banning email because it can be used for phishing scams. The Cato Institute noted that “Punishing every American by going after technology is not the solution for dealing with criminals”.

Banning mixers to stop cyber crime is like digging up roads to prevent carjackings.

I’m much more concerned about the big picture problems with this style of enforcement. The demonstrated lack of basic understanding of how this technology works and what they are doing at the Treasury department is frankly terrifying. 

It’s one thing to deliberately destroy Crypto ecosystems with regulation. It’s an entirely different thing to do it by accident. 

The Ethereum blockchain is open and readable. There are numerous firms and hobbyists who monitor transactions. All eyes will be on Tornado Cash to see if it continues to operate or if the sanctions shut it down. In the day after the sanctions came into effect almost $3M moved through Tornado Cash.

Sanctions are a powerful tool, but they are completely unsuited to dealing with decentralized or ungoverned entities like Tornado Cash. There is no one for the government to threaten here. There’s just users accessing open source code to assert their privacy. 

If the US Government is going to bluff, I’d prefer it if the entire world couldn’t see that bluff fail in real-time. 

Tyler Durden
Sat, 08/20/2022 – 16:30

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Ramaswamy, Ho, and Goldman

In Woke, Inc.: Inside Corporate America’s Social Justice Scam, lawyer and businessman Vivek Ramaswamy talks about his internship at Goldman Sachs—an internship that he starts by saying was coveted because Goldman was “the most elite financial institution in America.” “You didn’t join Goldman as a  summer intern for the $1,500-per-week paycheck, though that wasn’t bad. Or for the possibility of a $65,000-a-year full-time offer for a 100-plus-hour-a-week job. You did it for the privilege of saying: ‘I work at Goldman Sachs.'” But he soured on Goldman, in part because of things like the following incident:

The hallmark event at Goldman Sachs the summer I worked there wasn’t a poker tournament on a lavish boat cruise followed by a debauched night of clubbing, as it had been at the more edgy firm where I’d worked the prior summer. Rather, it was “service day”—a day that involved dressing up in a T-shirt and shorts and then dedicating time to serving the community. Back in 2006, that involved planting trees in a garden in Harlem. The co-head of the group at the time was supposed to lead the way.

I welcomed the prospect of a full day spent at a park away from Goldman’s cloistered offices. Yet when I showed up at the park in Harlem, very few of my colleagues seemed interested in … well, planting trees. The full-time analysts shared office gossip with the summer analysts. The vice presidents one-upped each other with war stories about investment deals. And, of course, the head of the group was nowhere to be found.

It was supposed to be an all-day activity, yet after an hour I noticed that very little service had actually been performed. As if on cue, the co-head of the group showed up an hour late—wearing a slim-fit suit and a pair of Gucci boots. The chatter among the rest of the team died down, as we awaited what he had to say.

“Alright, guys,” he said with a somber expression, as though he were going to discipline the team. A moment of tension hung in the air. And then he broke the ice: “Let’s take some pictures and get out of here!” The entire group burst into laughter. Within minutes we had vacated the premises. No trees had been planted. Within a half hour, the entire group was seated comfortably at a nearby bar that was well prepared for our arrival—pitchers of beer ready on the tables and all.

I turned to one of the younger associates sitting next to me at the bar. I remarked that if we wanted to have a “social day,” then we should’ve just called it that instead of “service day.”

He laughed and demurred: “Look, just do what the boss says.” Then he quipped back: “You ever heard of the Golden Rule?”

“Treat others like you want to be treated,” I replied.

“Wrong,” he said. “He who has the gold makes the rules.

I called it “the Goldman Rule.” I learned something valuable that summer after all.

And Ramaswamy then returns to use this phrase elsewhere in the book.

Of course, “He who has the gold makes the rules” is a familiar line, often labeled “the Golden Rule,” as a play on the other, quite different, Golden Rule. Ramaswamy labeled it “the Goldman Rule,” likewise as a play on Golden Rule.

Then, this past Thursday, the Ramaswamy formulation appeared in Judge James Ho’s concurrence in denial of en banc in Sambrano v. United Airlines. The specific legal dispute at this stage of the case is, as so many legal disputes, about procedural questions (such as when preliminary injunctions are available in religious discrimination cases, when opinions should be labeled precedential, and when courts should rehear cases en banc), but the underlying substantive question relates to United Airlines’ vaccination mandate and its absence of religious exemptions. Here’s an excerpt from Judge Ho’s opinion:

If the dissent is right, and this case is indeed pathbreaking, it’s important to understand why. What’s new here is not the law, but the behavior of industry. Historically, corporations typically focus on increasing shareholder value—not on imposing certain cultural values on others. But that is rapidly changing.

I began by imagining a hypothetical employer who doesn’t care how productive an employee you might be—he insists that you abandon certain religious beliefs he finds offensive, whether it’s abortion, marriage, sexuality, gender, or something else. But here’s the thing: What was once hypothetical is now rapidly becoming reality. Examples of this abound. [Citations omitted. -EV]

So this case may be the first, but I suspect it will not be the last.

[* * *]

A prominent commentator and former CEO recently expressed “deep[ ] concern[ ]” about this “new model of capitalism,” calling it “a dangerous expansion of corporate power that threatens to subvert American democracy.” Vivek Ramaswamy, Woke, Inc.: Inside Corporate America’s Social Justice Scam 18 (2021). As he explained, “America was founded on the idea that we make our most important value judgments through our democratic process, where each citizen’s voice is weighted equally, rather than by a small group of elites in private. Debates about our social values belong in the civic sphere, not in the corner offices of corporate America.” “[T]here’s a difference between speaking up as a citizen and using your company’s market power to foist your views onto society while avoiding the rigors of public debate in our democracy.” “When companies use their market power to make moral rules, they effectively prevent … other citizens from having the same say in our democracy.”

In sum, “it’s the Goldman Rule in action. The guys with the gold get to make the rules.” Id. at 18.

Not surprisingly, many Americans bemoan the impact that this new form of capitalism is starting to have on our Nation’s culture. Cf. Oliver v. Arnold, 19 F.4th 843, 843–44, 853–54 (5th Cir. 2021) (Ho, J., concurring in denial of rehearing en banc); Villarreal v. City of Laredo, _ F.4th _, _–_ (5th Cir. 2022) (Ho, J., concurring).

My point today is less ambitious: We know what this new corporate trend is doing to employees. It’s violating the religious convictions of workers across the country. And in cases like this, the injuries are irreparable.

So here’s the controversy: Some are claiming that referring to this as the “Goldman Rule” is “antisemitic” (on the theory that “Doesn’t really matter if he meant to be antisemitic. It is, and there’s a reason this kind of rhetoric is bubbling up now.”) See also here and here (“completely internalized antisemitism”) and here.

I take it the theory is that the label “Goldman Rule” is an attempt to condemn Goldman as a Jewish-founded company, or presumably to tie the universal principle (“The guys with the gold get to make the rules”) specifically to Jews—rather than, as the passage from the opinion suggests, to condemn certain behavior by large corporations generally (such as the not-particularly-Jewish-linked United Airlines).

This strikes me as quite mistaken. One great consequence of America’s longstanding relative openness to Jews has been that many Jews have thrived and reached prominence—in business, in politics, and elsewhere. When you become prominent enough, things become named after you: businesses, statutes, sayings, and more.

Some of them are positive, for instance using Einstein as the paragon of genius (though even that might be used sarcastically and negatively). Some of them are neutral, or perhaps negative but in a way that doesn’t reflect on the author, for instance the other Goldman Rule, named after screenwriter William Goldman: “Nobody knows anything” when it comes to predicting which movies will be successful. Some of them are negative in a way that’s critical of their namesakes, such as Ramaswamy’s Goldman Rule. Some of them are purely descriptive but may be loathed by those who disapprove of their substance. (There’s a gun control statute, for instance, called the Lautenberg Amendment, after Senator Frank Lautenberg.)

More broadly, some will criticize prominent people and institutions that happen to be Jewish, much as they may criticize prominent people and institutions that happen to belong to other groups. That will include people and institutions that are associated with businesses that for various reasons have been disproportionately Jewish (including, for instance, finance), precisely because lots of Jews have become prominent in those fields and there are thus more Jewish-linked institutions in those fields that merit comment, whether negative, positive, or neutral. Recall Ramaswamy’s story: He went to Goldman precisely because it was seen as so “elite.”

And of course such institutions shouldn’t be immune from criticism any more than institutions associated with other groups. It’s just as legitimate to criticize Mark Zuckerberg as Jack Dorsey, and just as legitimate to criticize Goldman Sachs as any other business (or as some people back in the day criticized the Rockefellers or J.P. Morgan or the like). And unsurprisingly Goldman Sachs is routinely harshly criticized, at least as often from the Left (see, e.g., this Bernie Sanders anti-Goldman-Sachs ad and many of these articles in The Nation, to choose just one Left publication) as from the Right. Ramaswamy’s “Goldman Rule” is pretty tame compared to some such criticisms. Will some anti-Semite listeners or readers endorse such criticisms because of their own preconceived anti-Semitic notions? Doubtless so. But the stupid reactions of some stupid people don’t make it improper for us to engage in legitimate criticism (though of course one can always disagree with that criticism on the merits).

Now to be sure, someone who hadn’t read Ramaswamy’s story might wonder, “Why is Ramaswamy calling it the ‘Goldman Rule’?” But thankfully we live in an era where all human knowledge is on a small box in each of our pockets. A few keystrokes will let you search for “ramaswamy ‘goldman rule,'” and there you have the answer: Ramaswamy thought Goldman was elite, decided his idol had feet of clay, and then used the coincidental similarity of “Goldman” and “Golden” as a way of criticizing what he saw as overstepping by business generally (and not, by the way, just financial businesses, which are more associated with Jews than corporate America generally). Judge Ho quoted part of Ramaswamy’s criticism, in the process quoting Ramaswamy’s label.

Seems quite reasonable to me (though, again, one can argue whether that criticism is indeed apt in this situation). There really is real anti-Semitism out there, regrettably. This isn’t it.

The post Ramaswamy, Ho, and Goldman appeared first on Reason.com.

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The “Good Ship Fifth Circuit” Denies En Banc Review in Sambrano v. United Airlines

In February, a divided panel of the Fifth Circuit decided Sambrano v. United Airlines. This case involved the airline’s requirement that employees get vaccinated. Judges Elrod and Oldham held that a federal court could issue a preliminary injunction in a Title VII case. Judge Smith dissented, very vigorously. I wrote about the case here.

Judge Smith was deeply perturbed that the majority chose not to publish its opinion. He called on the Fifth Circuit to grant rehearing en banc, but recognized that review was less likely since the panel opinion was unpublished. He wrote:

The fact that an opinion is unpublished furnishes just another reason to vote to deny en banc scrutiny. But by today’s ruling, the Good Ship Fifth Circuit is afire. We need all hands on deck.

On the Fifth Circuit, it takes nine hands to grant review. But Smith only got four. By a vote of 13-4. the en banc court denied en banc. Smith was joined by Judges Higginson, Costa, and Willett. Judge Smith wrote a dissent that explains why the panel opinion troubled him so much. There is some history here.

First, Judge Smith highlights the fact that the majority “discarded” an opinion he wrote in 1989:

And [the panel] resurrects a forty-nine-year-old Fifth Circuit decision that the Supreme Court long ago relegated to the dustbin 4—while discarding a more recent decision that has been cited about three hundred times.5

4 Drew v. Liberty Mut. Ins. Co., 480 F.2d 69 (5th Cir. 1973).

5 White v. Carlucci, 862 F.2d 1209 (5th Cir. 1989) (Smith, J., joined by Politz and King, JJ.).

Here, Judge Smith goes out of his way to stress that he wrote Carlucci–something I did not realize when I read the panel opinion. And this case was released barely two years into Smith’s tenure.

Second, Judge Smith flashes back to a Fifth Circuit rule change from 1996.

For reasons that I won’t take the time to explain, this court decided that unpublished opinions released in or after 1996 would not be precedential.20 It makes some sense not to clutter reporting services with routine opinions that decide nothing new and affect only the immediate parties.

Judge Smith, however, opposed that rule change. And he wasn’t alone.

That change generated considerable discussion. Along with a few other judges, I opposed that amendment even though, by then, all other circuits had chosen that path. We detractors warned, inter alia, that it would be too easy for any given panel majority to avoid the consequences of its decision—regardless of its importance—merely by adding the customary “do-not-publish” footnote. That way, a panel would feel comfortable declaring the winner without worrying about how doing so might affect future cases. Or, for much the same reason, a panelist might condition his or her concurrence on making the opinion unpublished.

It is rare for judges to air internal debates about rule changes. The most recent example I can recall is when Judge Willett referred to an internal court policy on en banc review of interim rulings. Though, this 1996 change is quite old. I’d wager that most of Judge Smith’s current clerks were in diapers when President Clinton was re-elected.

Now, Judge Smith charges that Judges Elrod and Oldham exploited the loophole created by the 1996 rule change:

Our concern was prescient. As I say in my panel dissent, the “obvious result” of the majority’s decision is to foster today’s “‘Blue Plate Special’ cause” without committing to sweeping legal changes that may not always produce the same outcomes.21 This “‘one and done’ method of decision-making”22 is made possible only by abusing the availability of unpublished opinions―a device that the full court has now fully validated by denying re-hearing.

Third, now Judge Smith worries that other rogue panels can avoid en banc review by marking the opinion as unpublished:

And by a lopsided vote, the en banc court declines to lift a finger. After today, a future panel that wishes to use the “one and done” method of decisionmaking can feel more secure in thinking there will be no consequences.

Judge Smith concludes:

Although I am confident that my colleagues have good reasons for voting, overwhelmingly, not to vacate the panel opinion and rehear this case en banc, we have squandered an opportunity to recommit to principled decisionmaking. 

This result replaces the rule of law with the rule of whim. I respect-fully dissent. 

Yet, the Good Ship Fifth Circuit whimsically floats on.

Judge Ho wrote a concurrence to the denial of rehearing. (And for those keeping track, Judge Ho clerked for Judge Smith!) Judge Ho agrees with the panel opinion:

To millions of people of faith—including the members of the Supreme Court—it’s painfully obvious that there’s no way to calculate damages to compensate for the loss of one’s soul.

Judge Ho also addressed a broader issue, that transcends the specifics of this case. Historically, conservatives have tended to favor the cause of corporations over the plight of employees. But in recent years, that trend has reversed as corporations have focused less on shareholder value and more on progressive politics. We are starting to see conservatives seek to use the power of the state to constrain companies that trample on traditional values. Sambrano is an illustration of that new dynamic: a corporation forced its employees to get vaccinated, while diminishing those who sought religious exemptions. (And, with some hindsight, we now know that the two-dose vaccines without a booster shot provided scant protection.)

Judge Ho speaks to these dynamics. He warns that more companies are trampling on religious beliefs–an injury that the panel majority deemed irreparable.

If the dissent is right, and this case is indeed pathbreaking, it’s important to understand why. What’s new here is not the law, but the behavior of industry. Historically, corporations typically focus on increasing shareholder value—not on imposing certain cultural values on others. But that is rapidly changing. began by imagining a hypothetical employer who doesn’t care how productive an employee you might be—he insists that you abandon certain religious beliefs he finds offensive, whether it’s abortion, marriage, sexuality, gender, or something else. But here’s the thing: What was once hypothetical is now rapidly becoming reality. Examples of this abound. . . . So this case may be the first, but I suspect it will not be the last.

And, in such cases, injunctive relief will become a more common remedy.

My point today is less ambitious: We know what this new corporate trend is doing to employees. It’s violating the religious convictions of workers across the country. And in cases like this, the injuries are irreparable. So unlike the dissent, I’m grateful that our court is taking the action it is today. And unlike the dissent, I don’t think our circuit will be alone, as cases like this inevitably multiply across the country, assuming corporate trends persist. But if our circuit turns out to be alone in its defense of religious liberty, I’ll be grateful for our actions today all the same.

Judge Ho references Vivek Ramaswamy’s book, Woke, Inc. Ramaswamy had worked at Goldman Sachs, where he learned of the “Golden Rule” from a colleague:

He laughed and demurred: “Look, just do what the boss says.” Then he quipped back: “You ever heard of the Golden Rule?”

“Treat others like you want to be treated?” I asked.

“Wrong,” he said. “He who has the gold makes the rules.”

I called it “the Goldman Rule.” I learned something valuable that summer after all.

The Goldman Rule no longer has a monopoly on the right.

In the past, I have used Judge Jones as the lodestar of the Fifth Circuit’s conservatism. And Judge Smith is not far behind. What is the conservative outcome in this case? Ruling for a multinational corporation and against the worker? Or ruling for a Title VII claimant? With so-called woke capitalism, the lines begin to blur.

The post The "Good Ship Fifth Circuit" Denies En Banc Review in <i>Sambrano v. United Airlines</i> appeared first on Reason.com.

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The Countries Supplying The EV Lithium Rush

The Countries Supplying The EV Lithium Rush

With both the demand and cost of lithium rising dramatically over the last few months, and forecast to do so into the future, this infographic from Statista’s Martin Armstrong takes a look at the countries which mine the most of the metal, and where the largest reserves are held.

Infographic: The Countries Supplying the EV Lithium Rush | Statista

You will find more infographics at Statista

The shift towards electric-powered mobility has really picked up pace in recent years and is only set to intensify as bans around the world on petrol and diesel car production come into place. As data from the U.S. Geological Survey shows, Australia and Chile are the countries best positioned to capitalize on the lithium rush. In 2021, 55,000 metric tons of the metal crucial to EV battery production was mined ‘down under’ – more than double of that extracted in Chile. The South American country does however have considerably larger reserves of the natural resource, as the infographic shows.

Important to note is that production figures for the United States were not published by the source in order to “avoid disclosing company proprietary data”. Reserves in the country are however recorded at 750,000 metric tons in 2021.

Tyler Durden
Sat, 08/20/2022 – 16:00

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Why Home Prices Haven’t Crashed Yet

Why Home Prices Haven’t Crashed Yet

Submitted by EPB Macro Research’s Eric Basmajian

Real home prices are going to fall, and it’s going to cause a massive negative wealth effect. Real home prices are much more impactful for the wealth effect compared to nominal home prices. Many people invest in real estate as an asset to beat inflation. If inflation is 10% and your home goes up 15%, you beat inflation by 5%, and thus, you are 5% wealthier in real terms. If inflation is 10% and your home goes up 5%, you lost 5% of your purchasing power in an asset that is supposed to give you protection, and you are actually worse off.

Also, real home prices are the best measure of the true performance of real estate as an asset class across long periods of time. You can’t compare home prices today to those in the 1970s without looking at them in real or inflation-adjusted terms.

This chart shows real home prices since the 1970s, and you can see that real home prices have declined several times, mainly around the recessionary periods.

The 2000s recession was an outlier in which home prices rose in real terms.

The financial crisis in 2008 caused home prices to decline by almost 30% in real terms. It took until 2021 to regain the peak in real home prices in 2006, 15 years!

Over the last ten years, real home price growth averaged 4.5%, which is way higher than the 20-year average of 2%.

Consumers and investors became accustomed to home prices rising sharply above the rate of inflation and a source of wealth building, particularly when using high amounts of leverage and mortgage debt.

With the feeling that home prices would always rise above inflation and nearly 5% above inflation, a prevailing sentiment was born that you could leverage your way to wealth. But now, real home prices are starting to decline.

One month is certainly not a trend, but this is where the EPB process becomes very powerful and why studying leading indicators is critical when determining what noise is and what’s the start of a new trend.

There are several key leading indicators of real home prices, but this video covers just three: the months’ supply of new homes, the spread between 30YR mortgage rates and 30YR Treasury rates, and the growth rate of real M2. All three indicators imply the rate of real home price appreciation is likely to decline in the months ahead.

This video explains the data behind these leading indicators and real home prices.

Tyler Durden
Sat, 08/20/2022 – 15:30

via ZeroHedge News https://ift.tt/EV2lpyx Tyler Durden

The “Good Ship Fifth Circuit” Denies En Banc Review in Sambrano v. United Airlines

In February, a divided panel of the Fifth Circuit decided Sambrano v. United Airlines. This case involved the airline’s requirement that employees get vaccinated. Judges Elrod and Oldham held that a federal court could issue a preliminary injunction in a Title VII case. Judge Smith dissented, very vigorously. I wrote about the case here.

Judge Smith was deeply perturbed that the majority chose not to publish its opinion. He called on the Fifth Circuit to grant rehearing en banc, but recognized that review was less likely since the panel opinion was unpublished. He wrote:

The fact that an opinion is unpublished furnishes just another reason to vote to deny en banc scrutiny. But by today’s ruling, the Good Ship Fifth Circuit is afire. We need all hands on deck.

On the Fifth Circuit, it takes nine hands to grant review. But Smith only got four. By a vote of 13-4. the en banc court denied en banc. Smith was joined by Judges Higginson, Costa, and Willett. Judge Smith wrote a dissent that explains why the panel opinion troubled him so much. There is some history here.

First, Judge Smith highlights the fact that the majority “discarded” an opinion he wrote in 1989:

And [the panel] resurrects a forty-nine-year-old Fifth Circuit decision that the Supreme Court long ago relegated to the dustbin 4—while discarding a more recent decision that has been cited about three hundred times.5

4 Drew v. Liberty Mut. Ins. Co., 480 F.2d 69 (5th Cir. 1973).

5 White v. Carlucci, 862 F.2d 1209 (5th Cir. 1989) (Smith, J., joined by Politz and King, JJ.).

Here, Judge Smith goes out of his way to stress that he wrote Carlucci–something I did not realize when I read the panel opinion. And this case was released barely two years into Smith’s tenure.

Second, Judge Smith flashes back to a Fifth Circuit rule change from 1996.

For reasons that I won’t take the time to explain, this court decided that unpublished opinions released in or after 1996 would not be precedential.20 It makes some sense not to clutter reporting services with routine opinions that decide nothing new and affect only the immediate parties.

Judge Smith, however, opposed that rule change. And he wasn’t alone.

That change generated considerable discussion. Along with a few other judges, I opposed that amendment even though, by then, all other circuits had chosen that path. We detractors warned, inter alia, that it would be too easy for any given panel majority to avoid the consequences of its decision—regardless of its importance—merely by adding the customary “do-not-publish” footnote. That way, a panel would feel comfortable declaring the winner without worrying about how doing so might affect future cases. Or, for much the same reason, a panelist might condition his or her concurrence on making the opinion unpublished.

It is rare for judges to air internal debates about rule changes. The most recent example I can recall is when Judge Willett referred to an internal court policy on en banc review of interim rulings. Though, this 1996 change is quite old. I’d wager that most of Judge Smith’s current clerks were in diapers when President Clinton was re-elected.

Now, Judge Smith charges that Judges Elrod and Oldham exploited the loophole created by the 1996 rule change:

Our concern was prescient. As I say in my panel dissent, the “obvious result” of the majority’s decision is to foster today’s “‘Blue Plate Special’ cause” without committing to sweeping legal changes that may not always produce the same outcomes.21 This “‘one and done’ method of decision-making”22 is made possible only by abusing the availability of unpublished opinions―a device that the full court has now fully validated by denying re-hearing.

Third, now Judge Smith worries that other rogue panels can avoid en banc review by marking the opinion as unpublished:

And by a lopsided vote, the en banc court declines to lift a finger. After today, a future panel that wishes to use the “one and done” method of decisionmaking can feel more secure in thinking there will be no consequences.

Judge Smith concludes:

Although I am confident that my colleagues have good reasons for voting, overwhelmingly, not to vacate the panel opinion and rehear this case en banc, we have squandered an opportunity to recommit to principled decisionmaking. 

This result replaces the rule of law with the rule of whim. I respect-fully dissent. 

Yet, the Good Ship Fifth Circuit whimsically floats on.

Judge Ho wrote a concurrence to the denial of rehearing. (And for those keeping track, Judge Ho clerked for Judge Smith!) Judge Ho agrees with the panel opinion:

To millions of people of faith—including the members of the Supreme Court—it’s painfully obvious that there’s no way to calculate damages to compensate for the loss of one’s soul.

Judge Ho also addressed a broader issue, that transcends the specifics of this case. Historically, conservatives have tended to favor the cause of corporations over the plight of employees. But in recent years, that trend has reversed as corporations have focused less on shareholder value and more on progress politics. We are starting to see conservatives seek to use the power of the state to constrain companies that trample on traditional values. Sambrano is an illustration of that new dynamic: a corporation forced its employees to get vaccinated, while diminishing those who sought religious exemptions. (And, with some hindsight, we now know that the two-dose vaccines without a booster shot provided scant protection.)

Judge Ho speaks to these dynamics. He warns that more companies are trampling on religious beliefs–an injury that the panel majority deemed irreparable.

If the dissent is right, and this case is indeed pathbreaking, it’s important to understand why. What’s new here is not the law, but the behavior of industry. Historically, corporations typically focus on increasing shareholder value—not on imposing certain cultural values on others. But that is rapidly changing. began by imagining a hypothetical employer who doesn’t care how productive an employee you might be—he insists that you abandon certain religious beliefs he finds offensive, whether it’s abortion, marriage, sexuality, gender, or something else. But here’s the thing: What was once hypothetical is now rapidly becoming reality. Examples of this abound. . . . So this case may be the first, but I suspect it will not be the last.

And, in such cases, injunctive relief will become a more common remedy.

My point today is less ambitious: We know what this new corporate trend is doing to employees. It’s violating the religious convictions of workers across the country. And in cases like this, the injuries are irreparable. So unlike the dissent, I’m grateful that our court is taking the action it is today. And unlike the dissent, I don’t think our circuit will be alone, as cases like this inevitably multiply across the country, assuming corporate trends persist. But if our circuit turns out to be alone in its defense of religious liberty, I’ll be grateful for our actions today all the same.

Judge Ho references Vivek Ramaswamy’s book, Woke, Inc. Ramaswamy had worked at Goldman Sachs, where he learned of the “Golden Rule” from a colleague:

He laughed and demurred: “Look, just do what the boss says.” Then he quipped back: “You ever heard of the Golden Rule?”

“Treat others like you want to be treated?” I asked.

“Wrong,” he said. “He who has the gold makes the rules.”

I called it “the Goldman Rule.” I learned something valuable that summer after all.

The Goldman Rule no longer has a monopoly on the right.

In the past, I have used Judge Jones as the lodestar of the Fifth Circuit’s conservatism. And Judge Smith is not far behind. What is the conservative outcome in this case? Ruling for a multinational corporation and against the worker? Or ruling for a Title VII claimant? With so-called woke capitalism, the lines begin to blur.

The post The "Good Ship Fifth Circuit" Denies En Banc Review in <i>Sambrano v. United Airlines</i> appeared first on Reason.com.

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