Yesterday, the Fifth Circuit heard oral argument in the so-called Buoys Case. Texas placed these floating structures in a portion of the Rio Grande river. The closest federal court to the buoys was the Del Rio Division of the Western District of Texas. But the United States filed suit more than two-hundred miles away in Austin. Why? I'm sure defenders would argue that the suit was brought in the state capital, the seat of government. But this decision has consequences. At the time, the Del Rio Division had one judge, an appointee of President George W. Bush. (A recent Biden nominee was confirmed to that division, after some controversy.) But in the Austin Division, DOJ had a much more favorable bench.
This issue came up during the en banc oral arguments, as noted by Bloomberg Law. I've transcribed the audio here, but the recording quality is dreadful. (I hope the Fifth Circuit can fix their tech.) Around the 8 minute mark, Judge Ho observed that the "events of this case took place in Del Rio, not Austin." Lanora Pettit, the Texas Deputy SG, acknowledged that the events took place in Eagle's Pass, which is "down river" from Del Rio. Ho continued that this was the United State's choice, and the federal government was the "master of the complaint."
Ho said, and Pettit agreed, that the choice of venue was "not relevant" to resolving the case. She is exactly right. Texas is often in the driver's seat of forum shopping, but here Texas was on the receiving end. This is how things work in the real world. Ignore whatever you read on Twitter.
Judge Ho also pointed out that the cases in Austin are not randomly assigned. This point is not well known nationally, but is well-known to members of the bar. Consider the current assignment order for the Western District of Texas, Austin Division. Judge Robert Pitman receives 50% of the civil docket, and has "Oversight and management of the remaining fifty percent (50%) of the civil" docket. In other words, Judge Pitman personally can decide half of the civil cases, and can decide who receives the other half of the civil cases. And how are those other cases assigned? Not randomly. Rather, three senior judges who sit in Austin are assigned cases by "mutual consent."
Senior U.S. District Judge James R. Nowlin: Any civil case, criminal case, court related matter, or administrative duty assigned or transferred to him by another judge by mutual consent.
Senior U.S. District Judge Sam Sparks: Any civil case, criminal case, court related matter, or administrative duty assigned or transferred to him by another judge by mutual consent.
Senior U.S. District Judge David A. Ezra: Any civil case, criminal case, court related matter, or administrative duty assigned or transferred to him by another judge by mutual consent.
None of these assignments are random. These senior judges can pick and choose which cases they receive. Judge shopping is often used to deride plaintiffs who chose their judge. But that term also applies to judges who choose their plaintiffs.
It is well known in Texas that Judge Ezra fancies the high-profile cases, and consistently receives them. By my count, in the past year, he has presided over the buoys case, the S.B. 4 case, and the porn age verification case. All three of these cases have already been on, or will soon be, on the Supreme Court's docket. Most federal district court judges can go their entire careers without having a single case make it to the Supreme Court. But Ezra has three in a year. Is this a coincidence? No. Ezra could only have received these cases by his "mutual consent." Judge Pitman offered these cases to him, and he accepted them.
Mind you that Judge Ezra is actually a visiting judge from the District of Hawaii, or what Attorney General Sessions called a "judge sitting on an island in the Pacific." To the extent that Ezra was approved to sit in the Western District of Texas, it was to help with some dockets that are backlogged, such as immigration cases or criminal sentencing. He was not sent to Austin to sit as a Council of Revision for the Texas legislature.
Do you think that Judge Ezra would support the Judicial Conference's ill-fated randomization policy? Absolutely not. With randomization he would be stuck with the mine-run of boring civil cases, instead of these high profile matters. It would be a fun thought experiment to randomize assignments within a division. Let's see if that could get buy-in from the Western District of Texas.
"The absence of a legitimate need for the audio recordings lays bare your likely goal—to chop them up, distort them, and use them for partisan political purposes."
Special Counsel Robert Hur described President Biden as a "well-meaning, elderly man with a poor memory." The White House did not invoke executive privilege to block the release of the transcript of Hur's interview with Biden. The House Oversight and Judiciary Committees requested the audio recording of Hur's interview. Now the White House has invoked executive privilege to block the release of the audio.
White House Counsel Ed Siskel gave the House's request two-thumbs down:
The President has a duty to safeguard the integrity and independence of Executive Branch law enforcement functions and protect them from undue partisan interference that could weaken those functions in the future. As you know, the Attorney General has warned that the disclosure of materials like these audio recordings risks harming future law enforcement investigations by making it less likely that witnesses in high-profile investigations will voluntarily cooperate. In fact, even a past President and Attorney General from your own party recognized the need to protect this type of law enforcement material from disclosure.
The absence of a legitimate need for the audio recordings lays bare your likely goal—to chop them up, distort them, and use them for partisan political purposes. Demanding such sensitive and constitutionally-protected law enforcement materials from the Executive Branch because you want to manipulate them for potential political gain is inappropriate.
Siskel's letter, as well as another letter by Attorney General Garland, dances around a key issue: given that the transcript has already been released, what is the risk of releasing the audio?
Consider the difference between reading the transcript of a Supreme Court proceeding and listening to the oral argument audio. For years, the Supreme Court resisted live-streaming oral argument, or even a same-day release. Why? Several justices acknowledged they were worried that audio from the proceeding could be spliced up and used for political purposes. Fast-forward to the present day, and all of the cases are live-streamed. As far as I can tell, the fears about chopping up audio have not materialized.
Back to President Biden. The White House is clearly worried that the audio may make him sound like a "well-meaning, elderly man with a poor memory." And that audio will be mercilessly used by the Trump campaign. It is possible that future witnesses may hesitate to voluntarily participate in high-profile investigations if both the transcripts and audio are released. But in the present moment, the protection of President Biden is paramount.
I see politics on both sides. The Republicans don't actually need the audio to learn more about the investigation. They want to embarrass Biden. And the White House has no real justification to withhold the audio, other than to protect Biden from embarrassment. Once again, politics and presidential power overlap. There is nothing new under the sun.
On Wednesday, the Supreme Court issued a one-paragraph, unsigned order in a pair of redistricting cases from Louisiana, Robinson v. Callais and Landry v. Callais. The Court granted the application for a stay. Justices Sotomayor and Kagan would have denied the application, and Justice Jackson wrote a two-page dissent. Most readers probably assumed that the conservative Supreme Court helped the republican voters, and the progressives Justices would have done the opposite. Not quite. Indeed, this is one of the more confusing emergency docket cases I've seen. The upshot of the case is that there will be two black districts in the 2024 election, both of which will almost certainly go to Democratic candidates. Many press accounts struggled to make sense of this case, and the split. Why would the Court's progressives dissent?
Rick Pildes offered a pithy description of the cases:
Two different federal courts had issued two decisions which left LA with no valid congressional map in place. The first federal court said LA's original map violated the Voting Rights Act; the second federal court said the new map LA enacted to remedy the VRA violation itself violated the Constitution.
Today, the Court stayed that second decision. The effect of that stay is the state's remedial map — which creates 2 VRA districts rather than just the 1 the state had created initially — will be the map LA uses this fall.
Let's summarize. White voters argued that the maps from the first court violated the Equal Protection Clause, and wanted the maps from the second court to go into effect. But Louisiana and the black voters asked the Court to stay the second decision to avoid confusion, so that the maps from the first court will go into effect for the upcoming 2024 election. The Supreme Court stayed the second court, citing the Purcell principle. Louisiana and the black voters prevailed, and the white voters lost.
Shouldn't this have been a unanimous decision? Why then did Justices Sotomayor and Kagan deny the application for a stay? Why did Justice Jackson dissent? They really, really do not like Purcell. So much so that they would have allowed the lower-court proceedings to continue in (checks notes) the 5th Circuit, to avoid setting a new emergency docket precedent (if such a thing can exist). To be sure, the troika would have likely found the first court's maps constitutional, and would have stepped in later. But they were not willing to accept a unanimous decision if doing so would create a precedent for invoking Purcell about six months before the election.
Here's the most intriguing question: What would have happened if Justices Thomas, Alito, and Gorsuch had declined to grant a stay, on the grounds that the first court's maps were unconstitutional? Roberts, Kavanaugh, and Barrett would not have had enough votes to stay the second court. At that point, I suspect that Justices Sotomayor and Kagan would have quietly slid up to the majority, allowing Justice Jackson to stand up for the principle in dissent. But that didn't happen. Justices Thomas, Alito, and Gorsuch are committed to Purcell, even where it means employing likely-unconstitutional maps in a congressional election. Whoever insists this is an all-Republican Court should carefully scrutinize this order.
"[A]ll the residences where he left materials had political signage in their yards and none of them had no trespassing signs posted. Thus, their consent to receive literature is 'implied from community custom and tradition.'"
Mr. Dolcini repeatedly placed paper material in the yards of two of his neighbors in response to political signs they displayed. The material was in bags that contained newspaper clippings, magazine articles, mail Mr. Dolcini had received, pamphlets, and other paper material. Mr. Dolcini had cut his address out of any of the mail, but the post office was able to use other identifying information on the pieces to determine they had been delivered to him. According to Mr. Dolcini, he delivered the material to promote the discussion of environmental issues. He removed his name because he did not want his mailbox to be blown up by an explosive, as had happened to another resident of his township.
Dolcini was convicted of littering, and sentenced to "30 hours of community service and … a $150 fine." Unconstitutional, the court held:
As an author, I am deeply grateful for criticism. Your critics correct you. Your critics help you improve. And as Oscar Wilde taught us in The Picture of Dorian Gray, "There is only one thing in the world worse than being talked about, and that is not being talked about." For the vast majority of writers, being widely denounced would be a big step up from being utterly ignored.
Granted, my thesis — property-owners, not government, should decide what to build on their own land — ultimately horrifies most people. But almost everyone who knows anything about housing knows that the case for determined deregulation is strong. Still, I plainly haven't convinced all informed observers. What are their best objections, and how do I reply?
"Exactly what regulations should be abolished? Are you opposed to building codes? Fire codes? Or what?" The book focuses on height restrictions, multifamily restrictions, minimum lot sizes, and minimum parking requirements. There is specific research on all four of these forms of regulation which confirms their high costs and low benefits, so we should definitely eviscerate them. But as my discussion of the slippery slope suggests, I am broadly opposed to even the most anodyne regulations. Reputation and private certification are the best ways to ensure occupants' safety. HOAs and nuisance lawsuits are the best ways to handle neighbors' complaints. I'm striving for a broad consensus, and celebrate any deregulation I can get. My aspirational agenda, however, is full laissez-faire.
"You claim that deregulation will raise fertility by reducing housing prices. But don't dense cities almost always lead to rock-bottom fertility?" Whenever you see birth dearths in cramped quarters, the fundamental question to ask is: "Why do these people consume such a small quantity of housing?" Our default answer should definitely be: "Because housing is expensive."If 4000 square foot apartments in Manhattan skyscrapers cost $1500 a month, would critics really still expect their occupants to have low fertility? While it is logically possible that density per se reduces fertilityholding the price per square foot of housing constant, I have yet to see any credible evidence of this. This recently popular paper has no price data. Furthermore, it measures density at the national level, so whether your people live in closets or mansions doesn't even register.
I'm also tempted to respond: If you fear density's effect on fertility, you should oppose the deregulation of skyscrapers, but support the rest of my agenda. But the validity of this rebuttal hinges on the way you measure density. It's not crazy, for example, to define density as "families per acre." Given this definition, maybe natalists should embrace 1-acre zoning for single-family homes. In fact, if you really believe that sheer density is psychologically sterilizing, perhaps you should try to prevent anyone from even seeing a neighboring home.
Ridiculous? Yes, but why? To repeat repeat repeat, because of the effect on housing prices! Even if, holding price constant, 1-acre zoning raises fertility, such regulations drastically raise housing prices, which strongly encourages young adults to keep living with their parents. Which in turn delays marriage and child-bearing, often permanently.
"Virtually all large U.S. cities are left-wing. Won't housing deregulation push U.S. political opinion to the left?" A dear Austin friend once told me, "It's great to live in a blue city in a red state." My response: "We don't really know what a red city would be like, because they basically don't exist." In the U.S., one-party democracy by Democrats is the urban norm. 18 out of the 20 most-populous U.S. cities have Democratic mayors. And in presidential elections, large metro areas lean strongly Democratic.
Suppose, then, that cities embraced housing deregulation. Construction booms, prices fall, and — since cities have the strictest regulation — the national population urbanizes. Won't the new arrivals assimilate to their new Democratic political culture, moving the entire United States in a leftist direction?
My honest answer is: It's complicated. I can't find a single academic article that even tries to study this effect. (If you know of any, please share in the comments).
What's clear is that a lot of the correlation between location and politics reflects reverse causation. To a large degree, leftists are more likely to live in cities because they like cities. Rightists do the opposite because they feel the opposite. Steve Landsburg won't like the wording of the 2014 survey question below, but it captures a meaningful attitudinal difference.
Despite these reservations, I suspect that the observed correlation between where you live and what you think about politics is partly causal. Even here, however, the mechanism matters. The default causal story is sheer conformism; or, in social science jargon, "peer effects." Humans crave the approval of nearby humans; imitation is proverbially the sincerest form of flattery; and flattery causes approval. Ergo, being around leftists normally causes you to become more left-wing, and being around rightists normally causes you to become more right-wing.But if conformism is the mechanism of political conversion, mass migration of non-leftists into newly-affordable cities is a double-edged sword. The leftist natives make the migrants more leftist, but the non-leftist migrants simultaneously make the natives less leftist. Net effect on average political orientation: unclear.By analogy, admitting non-Mormons to Brigham Young University probably causally makes them more likely to convert to Mormonism. But if BYU admitted a 50% non-Mormon student body, this would probably also causally turn many Mormons into ex-Mormons. Net effect of the non-Mormon migration on BYU's average religious affiliation: unclear.
One last political point: Partisan Democrats in safely blue states and partisan Republicans in safely red states both have a strong reason to favor housing deregulation: the electoral college. Unless migration actually flips your state's presidential vote, anyone who prioritizes national politics should hope to attract out-of-state migrants from the other party. This is clearest for California: Due to its famously wonderful weather, much cheaper housing would plausibly attract millions of Republicans, swelling California's population and therefore its electoral vote count. If the migrants come from nearby swing states, even better.
"Appellants thus seek to advance judicial economy—as this Court has done—through 'initial en banc hearing … without requiring the matter to percolate uselessly through a panel.'"
It is clear enough that the United States can bring suit under Section 2 of the Voting Rights Act. But can private litigants bring such a suit? Nothing in the text of the statute expressly grants that right. Does Section 2 include an implied private right of action? Recently, the Eighth Circuit held that it does not. However, in Robinson v. Ardoin (2023), a panel of the Fifth Circuit disagreed. Last month, the Louisiana Solicior General filed a petition for initial hearing en banc to resolve the split between the Eighth and Fifth Circuits. This petition would have skipped the three-judge panel, which was bound by the circuit precedent. The petition explained that initial en banc would "conserve" the Court's resources:
Panel-stage briefing on this threshold issue also would be pointless under the rule of orderliness. Appellants thus seek to advance judicial economy—as this Court has done—through "initial en banc hearing … without requiring the matter to percolate uselessly through a panel." Williams v. Catoe, 946 F.3d 278, 279 (5th Cir. 2020) (en banc). And if the en banc Court rules in Appellants' favor, that dismissal on clean legal grounds would obviate the need for a panel to spend extraordinary time and resources reviewing the district court's 91-page opinion for alleged Section 2 violations across nearly 150 House and Senate districts.
The clerk informed the SG that he would not circulate the petition to the full en banc court until the merits of the appeal are fully briefed. The United States and the private plaintiffs filed an opposition. Under FRAP 35, oppositions to en banc petitions are only filed after a request from the court. But here, the clerk styled the petition as a "motion for hearing en banc," and the appellees could file an opposition brief.
On May 15, the Louisiana SG filed a "motion for immediate circulation of the petition for initial hearing en banc and to hold briefing schedule in abeyance." Based on a quick search of the Westlaw briefs database, this sort of motion has never been filed before. But the circumstances are somewhat unique. Louisiana argues that it would be a waste of resources to fully brief a complicated case that could be disposed on the private right of action issue–especially where there is a clear circuit split.
The Fifth Circuit has granted initial en banc in a few cases over the years, including Williams v. Catoe (5th Cir. 2020).
Which could be as soon as this year. In fact, undoing the Harvard admissions decision is the least of it. Republicans and Democrats in Congress have embraced a precooked "privacy" bill that will impose race and gender quotas not just on academic admissions but on practically every private and public decision that matters to ordinary Americans. The provision could be adopted without scrutiny in a matter of weeks; that's because it is packaged as part of a bipartisan bill setting federal privacy standards—something that has been out of reach in Washington for decades. And it looks as though the bill breaks the deadlock by giving Republicans some of the federal preemption their business allies want while it gives Democrats and left-wing advocacy groups a provision that will quietly overrule the Supreme Court's Harvard decision and impose identity-based quotas on a wide swath of American life.
This tradeoff first showed up in a 2023 bill that Democratic and Republican members of the House commerce committee approved by an overwhelming 53-2 vote. That bill, however, never won the support of Sen. Cantwell (D-WA), who chairs the Senate commerce committee. This time around, a lightly revised version of the bill has been endorsed by both Sen. Cantwell and her House counterpart, Cathy McMorris Rodgers (R-WA). The bill has a new name, the American Privacy Rights Act of 2024 (APRA), but it retains the earlier bill's core provision, which uses a "disparate impact" test to impose race, gender, and other quotas on practically every institutional decision of importance to Americans.
"Disparate impact" has a long and controversial history in employment law; it's controversial because it condemns as discriminatory practices that disproportionately affect racial, ethnic, gender, and other protected groups. Savvy employers soon learn that the easiest way to avoid disparate impact liability is to eliminate the disparity – that is, to hire a work force that is balanced by race and ethnicity. As the Supreme Court pointed out long ago, this is a recipe for discrimination; disparate impact liability can "leave the employer little choice . . . but to engage in a subjective quota system of employment selection." Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 652-53 (1989), quoting Albemarle Paper Co. v. Moody, 422 U.S. 405, 448 (1975) (Blackmun, J., concurring).
In the context of hiring and promotion, the easy slide from disparate impact to quotas has proven controversial. The Supreme Court decision that adopted disparate impact as a legal doctrine, Griggs v. Duke Power Co., 401 U.S. 432 (1971), has been persuasively criticized for ignoring Congressional intent. G. Heriot, Title VII Disparate Impact Liability Makes Almost Everything Presumptively Illegal, 14 N.Y.U. J. L. & Liberty 1 (2020). In theory, Griggs allowed employers to justify a hiring rule with a disparate impact if they could show that the rule was motivated not by animus but by business necessity. A few rules have been saved by business necessity; lifeguards have to be able to swim. But in the years since Griggs, the Supreme Court and Congress have struggled to define the business necessity defense; in practice there are few if any hiring qualifications that clearly pass muster if they have a disparate impact.
And there are few if any employment qualifications that don't have some disparate impact. As Prof. Heriot has pointed out, "everything has a disparate impact on some group:"
On average, men are stronger than women, while women are generally more capable of fine handiwork. Chinese Americans and Korean Americans score higher on standardized math tests and other measures of mathematical ability than most other national origin groups….
African American college students earn a disproportionate share of college degrees in public administration and social services. Asian Americans are less likely to have majored in Psychology. Unitarians are more likely to have college degrees than Baptists.…
I have in the past promised to pay $10,000 to the favorite charity of anyone who can bring to my attention a job qualification that has made a difference in a real case and has no disparate impact on any race, color, religion, sex, or national origin group. So far I have not had to pay.
Id. at 35-37. In short, disparate impacts are everywhere in the real world, and so is the temptation to solve the problem with quotas. The difficulty is that, as the polls about the Harvard decision reveal, most Americans don't like the solution. They think it's unfair. As Justice Scalia noted in 2009, the incentives for racial quotas set the stage for a "war between disparate impact and equal protection." Ricci v. DeStefano, 557 U.S. 557, 594 (2009).
Not surprisingly, quota advocates don't want to fight such a war in the light of day. That's presumably why APRA obscures the mechanism by which it imposes quotas.
Was Dobbs an originalist opinion? Did it abandon originalism for "history and tradition"? Or did the Court's history show originalism itself to be fatally flawed?
Though often hailed as an originalist triumph, Dobbs v. Jackson Women's Health Organization has also been condemned as an originalist betrayal. To some, it abandoned originalism's principles in favor of a Glucksbergesque history-and-tradition test, or even a "living traditionalism"; to others, its use of originalism was itself the betrayal, yoking modern law to an oppressive past.
This essay argues that Dobbs is indeed an originalist opinion: if not distinctively originalist, then originalism-compliant, the sort of opinion an originalist judge could and should have written. Dobbs shows the importance of looking to our original law—to all of it, including lawful doctrines of procedure and practice, and not just to wooden caricatures of original public meaning. As the case was framed, the Court's focus on history and tradition was the correct approach; on the evidence presented, it reached the correct originalist result. Understanding the Fourteenth Amendment as securing old rights, rather than as letting judges craft new ones, leaves more rather than fewer choices for today's voters. In any case, it may be the law we've made, both in the 1860s and today.
And from the intro:
Dobbs v. Jackson Women's Health Organization is widely regarded as a "triumph for originalism." For years, many people had assumed that opposing the Supreme Court's decisions in Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey was what it meant to be an originalist; to see Roe and Casey overturned would naturally be an originalist victory.
But almost as soon as Dobbs was handed down, critics began to describe it as an originalist betrayal. Some saw it as a betrayal of originalism, arguing that the Court hadn't been originalist enough. What was it doing, citing substantive due process cases like Washington v. Glucksberg? Why wasn't it throwing Griswold v. Connecticut, Eisenstadt v. Baird, Lawrence v. Texas, or Obergefell v. Hodges under the bus? Was this "a form of living constitutionalism," or a "living traditionalism," or something more exotic still? Others, meanwhile, portrayed Dobbs's originalism itself as the betrayal—decrying the decision as a flawed effort both in process and in substance, one that engaged in bad history to reach bad results.
Both criticisms go awry. Dobbs was indeed an originalist opinion as a matter of form; on the arguments presented, it was also correct as a matter of originalist substance. True, the Dobbs Court cited and applied its modern precedents on substantive due process, and it didn't cite Madison or John Bingham every other page. In that sense it wasn't a distinctively originalist opinion, the kind that only a faithful originalist could write. But it was an originalism-compatible opinion, the kind a faithful originalist could write. Indeed, it appears to have been an originalism-compliant opinion, the kind a faithful originalist should write, reaching the right originalist result for what were essentially the right originalist reasons.
To understand why, though, we have to pay attention to some recent developments in originalist theory. In particular, we have to distinguish specific questions of original meaning from more general—and, here, more relevant—questions of original law: that is, the law of the United States as it stood at the Founding, and as it's been lawfully changed to the present day. That law includes enacted law, such as the Constitution, statutes, and treaties, but it also includes unwritten law, such as unabrogated rules of the common law, equity, or admiralty. In particular, it includes common-law doctrines of party presentation and of stare decisis, which might have obliged an originalist Court to rule just as it did. If both parties in Dobbs accepted the authority of Washington v. Glucksberg, it can't be too surprising that the Court might have gone ahead and Glucksberged.
Once we understand the role of unwritten law, we can also see that something not too far from Dobbs's history-and-tradition test may in fact be what the Constitution commands. Many originalists reject doctrines of substantive due process but understand the Fourteenth Amendment's substantive rights guarantees to relate to the Privileges or Immunities Clause instead. This Clause likely protects a variety of preexisting rights defined by general law—rights that we today might call common-law rights, but not in the sense of being up to state or federal judges to invent. The Clause obliges us to look to history for these rights, not because the past must always be preserved inviolate, but because certain past practices are evidence of past legal rules, and those rules are all the Amendment foists on us today. If the resulting doctrine is narrower than some might like, this just means the Amendment's yoke is easy and its burden light; the remaining decisions are up to us, and to our "elected representatives."
In The Canceling of the American Mind, Greg Lukianoff and Rikki Schlott argue that the "modern era of Cancel Culture" began in 2014 and continues to the present. From 2014 to mid-2023, the authors argue that there were "more than 1,000 attempts to get professors fired, punished, or otherwise silenced." Of those, two-thirds of cases were successful in that they led to "consequences from investigation to termination." The authors argue that the sheer number of professors being fired is "truly unprecedented" and has not "been seen since the Supreme Court first established First Amendment protections of academic freedom and campus speech." According to the authors, "more professors have been terminated during the era of Cancel Culture than in the era of McCarthyism[.]"
Enter Dr. Janet Monge, who spent much of her academic career working for the University of Pennsylvania in Philadelphia. Dr. Monge alleges that she is one of the numerous professors who has been a victim of the modern era of Cancel Culture. Dr. Monge brings defamation [claims, among others] against, among others, the University of Pennsylvania, former Penn President Dr. Amy Gutmann, and former Penn Provost Dr. Wendell Pritchett ("Penn Defendants") for statements that they made regarding Dr. Monge's role as an anthropology professor when she used bone fragments and unidentified remains of victims of the 1985 MOVE bombing in an online anthropology course….
To vastly oversimplify the factual backstory, in 1985 the Philadelphia police bombed a building inhabited by "the MOVE family," also known as the Africa family, a commune of self-described revolutionaries, killing "Eleven MOVE members …, presumably six adults and five children." There was some uncertainty about the identity of some of the remains, and Dr. Monge was one of the people who eventually investigated the matter, and was in charge of storing the bones. She also discussed and showed bone fragments in an online course, "Real Bones: Adventures in Forensic Anthropology":
Tom Smith, a law professor in San Diego (and my brother-in-law), has an interesting blog on politics, law, and culture—"The Right Coast." Because of some technical issues, he has had to move the blog to a new location, found here. Tom has asked me to pass along this note, which I am happy to do. It's a fun little blog that may be of interest.
I have recently come across two remarkable resources for any of you who are, like me, fascinated [perhaps to the point of obsession] by the early history of rock-and-roll.
The firstis the podcast "A History of Rock Music in 500 Songs," [available at the usual spots, and here] produced by Andrew Hickey. It's just what it says it is, and it's pretty astonishing. Each episode tells the story of one song in amazing detail, with a focus on (a) the production: how the song was written, how/why/where it was recorded, who the backing musicians were and how they got there, how they decided to add horns or extra vocals or whatever, etc. etc.—and (b) the music business: who owned the publishing rights and how they got them, who owned the masters and what they did with them, who decided which tracks went on which albums or on 45s (remember 45s?), who got the songwriting credits and why …
The guy has done an unbelievable amount of research, and he tells a great story. I find it mesmerizing (though Hickey's narrating voice takes a little getting used to). It's definitely not for everyone; the episodes are pretty substantial in length (an hour or sometimes a bit more), and they contain more than most people probably want to know about, say, how George Martin ended up producing the Beatles because his boss wanted to punish him for being such a pain in the ass (and for having an affair with his secretary), or how Ike Everly, through his contacts at the barber shop that he owned and operated, helped his sons Phil and Don get their first recording contract, or why Dylan didn't use The Band to back him on Blonde on Blonde, or how Buddy Holly ended up on that airplane because his manager had stolen all of the money The Crickets had earned**, or how The Mob (not a band—the actual Mob) controlled huge swaths of the music business—the clubs, the music publishers and recording companies, the musicians' unions, etc.—in NYC in the '50s and '60s. Etc. etc.
**One of the many, many things about the music industry that I have learned from Hickey is that musicians didn't have to be black to get ripped off by the "suits," who were definitely equal-opportunity crooks and shysters.
But if you love this music and want to learn a shitload of stuff you never knew about how it came to be, I highly recommend it. If you want to give it a try, my advice is to pick a song you're particularly fond of—he's reached #174, moving chronologically from the beginnings in the late '30s through 1969 thus far.– and listen to what he has to say about it; that should give you a good sense of whether it's your kind of thing.
The second is something I picked up on Hickey's recommendation (in Episode 100 on "Love Me Do," the Beatles' first Parlophone single from 1962, which I particularly recommend): Mark Lewisohn's magnificent and brilliant biography of the Beatles, "Tune In." This first (of a projected 3 volumes) covers, in 960+ pages (!), the years from their childhoods up to the end of 1962 and the imminent release of their second Parlophone single, "Please Please Me," which would become the first of 32 (!) Number 1 hits they released over the next 7 years.
I have long thought that no biography could possibly touch Robert Caro's magnificent multi-volume set on LBJ, but Lewisohn comes very close—an encyclopedic and incredibly engrossing social history of life in Liverpool (and the UK in general) in the immediate post-WWII years, with real insight into the peculiar combination of dumb luck, sheer brilliance, fearlessness, toughness, love, self-confidence, and single-mindedness of purpose, that enabled four teenage working-class school dropouts—from, of all places, Liverpool, a city in the throes of a terrible decline as a consequence of the twin shocks of Britain's de-industrialization and the ferocious pounding it took from the Germans—were able to transform the global entertainment industry and global culture.
In his Introduction, Lewisohn confronts the obvious question: do we really need 900+ pages and 400,000 words about the early years of what was, after all, just a rock-and-roll band, even one that was an especially terrific and influential one? Here's what he wrote; I think it's the best thing I've ever read about just how special the Beatles were:
"Every once in a while, life conjures up a genuine ultimate. It can be said without fear of hyperbole, this is what the Beatles were and are. And [sixty]-plus years after they leapt into view—[sixty!]—there's little hint it's going to change. So many would-be successors have come and gone, there's now an acceptance that no-one can be bigger or better. John Winston Lennon, James Paul McCartney, George Harrison, and Richard Starkey hold on strong, universally acknowledged as a cultural force, still somehow current and woven into the fabric of modern lives. John, Paul, George, and Ringo—the four Liverpool lads who pumped the heart of a decade that also won't shut up, the 1960s.
If it was necessary to "sell" the Beatles, you could point to many achievements, but their music underpins everything. One game-changing album after another, and one game-changing single after another, two hundred and fourteen tracks recorded in seven crowded years in a kaleidoscope of styles. This music is known, loved, respected, discussed, imitated, cherished, and studied. It continues to inspire new artists and be reshaped impressively in every genre. Its song titles and words are adapted for headlines in 21st century media, its quotes are enfolded in everyday vocabulary and chanted in football stadiums. Infused with the Beatles' energy and personalities, this music still lifts the spirit and is passed joyfully from generation to generation. Clearly, something special happened here—but what? How?
Consider too how the Beatles repeatedly married cutting-edge originality with immense mainstream popularity, when for almost anyone else these are mutually exclusive. And how and why they ditched their winning ideas every time the world raced to copy them. Consider how they did everything with down-to-earth humor, honesty, optimism, style, charisma, irreverence, intelligence, and a particularly spiky disdain for falseness. How they were articulate, bold, curious, direct, instinctive, challenging, blunt, sharp, polite, rude—prickers of pomposity, rule-breakers never cowed by convention. And consider how they created a profound and sustained connection to their public, and how they resisted branding, commercial sponsorship, and corporate affiliation and hype. The Beatles were free of artifice, and weren't the product of market research or focus groups or TV talent shows. They were original, and developed organically when everyone was looking the other way. . . .
I've been waiting for a book this sweeping story demands … one that explains how the society that shaped the Beatles first received them and then was shaped by them, how John, Paul, George, and Ringo dealt with each other as friends and bandmates, how they so deftly handled the media and such phenomenal celebrity, how they transformed the worldwide music industry and shook global youth culture awake, and how they induced a revolution in how people listen to and play music. The Beatles didn't invent the electric guitar, and weren't the first guitar group—but every rock band since 1963 is fulfilling their legacy …."
As with the Hickey podcast, it's not for everyone. But the Lewisohn book sweeps much more broadly Hickey's podcast, and I don't think you have to be quite the same kind of rock-and-roll obsessive to enjoy it and to learn an enormous amount about what the world was like in the middle of the last century.
In 2019, Chang-Tai Hsieh and Enrico Moretti published "Housing Constraints and Spatial Misallocation" in the American Economic Journal. It's probably academia's most famous Yes In My Backyard (YIMBY) article. H-M imagined a scenario where New York City and the Bay Area never imposed draconian housing regulation. Then they estimated how much bigger the U.S. economy would have been in this alternate history. Their answer was shocking. Restraining local regulation in just two keys localities would have made total U.S. GDP 4-9% higher.
The key idea: New York City and the Bay Area are the country's most productive areas. Given the same inputs, they yield an exceptionally large quantity of output. In economic jargon, they have sky-high Total Factor Productivity. With much less housing regulation, housing prices in these TFP-rich areas would be much lower. Their populations would, in turn, be much higher. Production would naturally fall in low-TFP regions, but rise far more in high-TFP regions. As a result, the total output of the country would rise.
When writing Build, Baby, Build, I reviewed H-M closely. To my surprise, I discovered multiple arithmetic errors, which Hsieh and Moretti quickly acknowledged. Strangely, my corrections actually strengthened their results. Instead of implying that GDP would be 4-9% higher, their paper actually implies that GDP would be 14-36% higher. Super shocking!
Recently, however, I started wondering what a quick "back-of-the-envelope" or "napkin" calculation would reveal. When I teach the economic effects of immigration, for example, I normally start by multiplying rough estimates of (a) gains per immigrant by (b) total number of immigrants. In principle, one could do the same for domestic migration. Why not give it a try?
After looking for easily accessible data and weighing a few different approaches, I did the following.
To make life easier, I only did calculations for the "High School" and "Bachelor's Degree" calculations, and assumed that 2/3rds of workers were in the former category, and 1/3rd in the latter. Close enough.
I coded the following as having "Bad Zoning": California, Connecticut, DC, Massachusetts, Maryland, New Jersey, New York, and Rhode Island.
I calculated population-weighted average mean earnings in Bad Zoning states, and assumed that post-deregulation migration into the Bad Zoning states would be proportional to their existing populations.
I assumed that if Bad Zoning were ended, the fraction of workers who would move was directly proportion to the percentage wage gain for their educational category.
I set an elasticity of .2, which implies that a 5% wage gain would induce 1% of workers to move.
Snapping these pieces together, I calculated per-worker annual dollar gains for both educational categories for all states. If a mover gains $5000, but only 2% of workers would actually move, the per-worker gain is $100.
I can use population weights to calculate per-worker gains for the whole country. If, for example, there were two states total, one with 1M people and the other with $99M, the per-worker gains for the country would be 1% times the gain in the first state plus 99% times the gain in the second state.
Since this was too much to actually write on a napkin, I set it all up as a simple Google Sheet, which you can view (and tinker with!) here. Obviously you can lodge dozens of complaints about what I did, but I'm just going for basic plausibility.
Here's what I found: Under my assumptions, GDP rises by $532 per worker, about +.8%. Much lower than H-M's original lower bound of +4%. A lot in absolute terms, but nothing transformative.
How sensitive are the results to the assumptions?
The gains are directly proportional to the elasticity of .2 that I set in Assumption #6. If you think that a 1% wage gain will prompt 1% of workers to move, H-M's initial lower bound is correct. But that seems crazy high.
I used state-level data because it was easier. But Table 11 in "What You Make Depends on Where You Live" has data on income by education for 104 metropolitan areas (MSAs). The poorest metropolitan areas are almost as poor as the poorest states, but the richest metropolitan areas are markedly richer than the richest states. The non-metropolitan areas would generally be poorer still.
Upshot: A thought experiment where housing deregulation causes movement to the very richest metropolitan areas (rather than just the richest states) could plausibly yield gains twice as large as my initial estimates. If you want to do the actual work, I'll gladly run it as a guest post on my Substack.
First, because gains per capita are so much larger internationally. As Clemens, Montenegro, and Pritchett (CMP) show, immigrants from the Third World to the U.S. routinely multiply their income by a factor of 5 or 10. In contrast, moving from the very poorest MSA (El Paso, Texas) to the very richest (Bridgeport-Stamford-Norwalk, Connecticut) multiplies high school earnings by 1.6 and college earnings by 2.7. The biggest intra-national gains are about as big as the smallest international gains in CMP.
Second, because far more people want to migrate internationally. Massive gains motivate billions. Moderate gains motivate only millions, or perhaps tens of millions. Big times big is massive, but moderate times moderate remains moderate.
The lesson: Hsieh and Moretti's initial estimates were always implausibly large. When I corrected their math, yielding even bigger estimated effects, I should have taken out a napkin for a quick plausibility check.
Fortunately, I have another napkin. A better napkin. The cleanest, clearest case for YIMBY is simply that (a) housing deregulation would sharply reduce housing prices (by about 50%), and (b) housing is a large share of the household budget (about 20%). So deregulation would ultimately cut the cost of living by 10% — and raise living standards by 11%. (Read the book for details).
I'll never get in the American Economic Journal with this argument, but I say it's solid.
Chatting with Plato and Aristotle in Build, Baby Build
So Judge Gregory Williams (D. Del.) held today, in Overington v. Fisher: Even if FCANCER is understood as meaning "Fuck Cancer" (rather than, say, "Fight Cancer"), the exclusion of "any plate considered offensive in nature" from the state's personalized plate program was unconstitutionally viewpoint-based and discretionary.
To reach this result, the judge had to decide whether the plates in the personalized plate program were private speech or government speech, and concluded that they were private speech. The court's analysis was close to the one I wrote about two years ago in this post about Ogilvie v. Gordon (N.D. Cal.).
Seems generally correct to me. Perhaps a narrow and specific prohibition on particular vulgarities might be viewpoint-neutral (even if content-based), and thus permissible in a "limited public forum" such as this one; but a ban on "any plate considered offensive in nature" doesn't qualify, see Iancu v. Brunetti (2019).
One error I noticed: The court cited Ogilvie for the proposition that "[O]bscenity, vulgarity, profanity, hate speech, and fighting words fall outside the scope of the First Amendment's protections"; but Ogilvie didn't hold that, and there are no First Amendment exceptions for vulgarity, profanity, or hate speech. Moreover, because "hate speech" is a viewpoint-based category (cf. Matal v. Tam (2017)), the government can't exclude "hate speech" even from limited public fora (or nonpublic fora), even if it could exclude "vulgarity" or "profanity."
If you follow politics and public policy, you are likely to be bombarded with messages about a vast range of different issues. How do you prioritize among them?
Setting priorities is essential for a number of reasons. Time, energy, and money devoted to Issue A are thereby denied to issues B, C, and D. Thus, we need to think about where these limited resources can do the most good. In deciding which candidate to vote for in an election, other things equal, a candidate who is good (or less bad) on high-priority issues is preferable to one who is bad on them—even if he or she is superior on less-important issues. Most electoral decisions involve choosing a lesser evil. Who that is depends in large part on the relative priority of issues.
It doesn't necessarily follow that we should always devote our time and effort exclusively to the most important issues. A large gain on a small issue might sometimes outweigh a small gain on a big one. And you can sometimes to do more good focusing on a small issue where you have real expertise than focusing on a big one about which you know very little. Nonetheless, the relative significance of issues should be a crucial factor in many decisions, even if it can't always be the only consideration. Thus, we need criteria for determining that.
Issue prioritization is partly a matter of values. For example, a utilitarian who cares only about consequences for human happiness and welfare is likely to have different priorities from a rights theorists who believes some rights should never be violated, regardless of consequences.
I won't try to resolve fundamental disagreements over values in this post. I will merely say that the values I consider most important are liberty (including property rights as well as bodily autonomy) and human happiness. I want people to be as free as possible, but also as happy as possible. These values are of obvious significance to libertarians (excluding, perhaps, some who completely reject consequentialism). But they are also important for most in the broader liberal tradition. Non-libertarian liberals still tend to value "negative" liberty, even if they don't give it as high a priority as libertarians do.
Given those values, how should we prioritize issues?
In a recent guest-blogging post, Bryan Caplan argues that housing deregulation should be a high-priority issue for libertarians, because of its enormous effects. Millions of people would enjoy lower housing prices and be free to "move to opportunity." Magnitude of effect is definitely an important criterion for prioritizing issues. An issue where there is a lot of freedom and happiness at stake is more important than one where the quantity is low.
The assessment of such impacts on liberty and happiness should focus on net effects: the overall impact of the policy. A policy that increases liberty or happiness in one way, but also results in a decrease of comparable magnitude by some other pathway, is less desirable than one that has a large positive impact on net. The same goes for issues where there are difficult trade-offs between liberty on one side and happiness/welfare on the other. Other things equal, they deserve a lower priority than ones where liberty and happiness are in alignment.
Caplan also argues that housing deregulation deserves high priority because there is a relatively simple fix available for the problem: to enable a massive increase in housing construction, government need only "get out of the way" by cutting back or eliminating exclusionary zoning and other regulations that current block it. That's relatively easy to do! By contrast, some policy issue might refer competence and "state capacity" well beyond anything that currently exists. Issues that require a major increase in competence or capacity deserve lower priority than ones where there is a simple fix that can be implemented quickly.
I would add that there is a related distinction between issues where there is room for incremental progress, and ones that are "all or nothing" propositions, where only a massive, radical change in policy can accomplish anything of value. Other things equal, the former deserve priority over the latter, except in rare "revolutionary" situations where radical change becomes more feasible than it usually is. For example, the conditions of the Civil War made immediate, nationwide abolition of slavery politically feasible, in a way that it clearly wasn't in earlier eras.
Thus, we have three criteria for prioritizing policy issues:
1. Magnitude of effects on human freedom and happiness. Big effects deserve priority over small ones.
2. Easy to implement solutions. Problems with simple, quick, fixes deserve priority over ones where the solution is difficult and/or requires a massive increase in competence and capacity.
3. The possibility of incremental progress. Issues where incremental progress is possible deserve priority over "all or nothing" issues, except in unusual revolutionary situations.
With these criteria in mind, here are three issues that I think deserve much higher priority than most people—including most of my fellow libertarians—give them: housing deregulation, easing immigration restrictions, and legalizing organ markets.
Bryan Caplan's post, linked above, is a good summary of the case for deregulating housing construction. It would make millions of people better off by reducing housing costs, and enabling more people to "move to opportunity" and "vote with their feet." In addition, this is a huge issue for people who care about liberty and property rights. Exclusionary zoning restricts property rights more than any other type of government regulation. It prevents hundreds of thousands of property owners from using their own property as they see fit. If you believe that property rights are a crucial component of liberty more generally, than zoning and other similar regulations are a massive affront to your values.
And, as Bryan also points out, there is an easy fix: simply repeal the regulations that stand in the way. Doing that does not require any great technocratic competence on the part of government.
Finally, there is tremendous room for incremental progress. Abolishing some exclusionary zoning rules but not others can still enable a lot more new housing to be built, and still strengthen protection for property rights. Ditto for deregulation that applies in some states or localities, but not others.
Regular readers won't be surprised that reducing immigration restrictions ranks high on my list of priority issues. Immigration restrictions literally consign millions of people to lives of poverty and oppression. Dropping them would massively increase freedom of virtually every kind: economic, personal, religious, and more. Think of people fleeing oppressive dictatorships like those escaping Cuba and Venezuela, people fleeing war (such as Vladimir Putin's invasion of Ukraine), political and religious dissidents fleeing persecution, and so on.
Ending all or most immigration restrictions would also greatly increase liberty for native-born citizens of receiving countries, as well as the migrants themselves. I go into the reasons why here and here.
The positive impact on human happiness is also enormous. Economists estimate that free migration throughout the world would roughly double world GDP, by enabling millions of people to move to places where they can be more productive. In addition, immigrants disproportionately contribute to economic, scientific, and medical innovation, thereby further increasing the gains migration—including for natives, who also stand to benefit from all that progress. As an extra bonus, increasing opportunities for legal migration is also the best way to reduce chaos and disorder at borders, like the US border with Mexico.
Negative side effects of migration are nowhere near large enough to offset these enormous gains, and those side effects can be further reduced by "keyhole" solutions. I discuss how and why in more detail in Chapter 6 of my book Free to Move: Foot Voting, Migration, and Political Freedom.
The policy fix here is simple: mainly, governments just need to cut back on laws and regulations that exclude migrants. Some keyhole solutions are more complicated. But they are nonetheless well within the competence of most existing First World governments. Examples include such things as restricting immigrants' eligibility for welfare benefits (which we already do under the 1996 welfare reform bill).
As with housing, there is plenty of room for incremental progress. Increasing the annual number of immigrants admitted to the United States by 10% would still enable about 100,000 more migrants to attain vast increases in freedom and happiness each year, as well as facilitate substantial gains for natives. The list of ways in which immigration restrictions can be incrementally liberalized is almost limitless.
The fix for this problem is an easy one: simply repeal current laws banning organ sales! Implementing rules against coercion and fraud in organ markets is a bit more complex. But we already have such rules in other markets. There is no need for any major new type of state capacity that doesn't currently exist.
Incremental progress here is somewhat more difficult than with housing and immigration. It may seem as if legalizing organ markets is an all-or-nothing proposition. But that is far from entirely true. There are various ways in which we can legalize some types of payments for organs, while continuing to ban or restrict others. The recently proposed End Kidney Deaths Act is one example of such a proposal. We can also imagine legalization limited to some sellers, but not others (e.g.—if you are worried about "exploitation" of the poor, you can advocate legalizing sales only by the non-poor). In addition, survey data suggests the public is more open to broader legalization than usually thought.
This list is far from an exhaustive one. I chose these issues because they are particularly stark examples, and because I have relevant expertise about them.
There is, of course, the danger that these issues just seem important to me because I spend a lot of time on them. I can't definitively disprove that conjecture. But I will note that all three are issues to which I have gradually devoted more of my time and attention, as I came to realize how important they are. For example, my early work on property rights focused more on eminent domain. But I have written more about exclusionary zoning in recent years, because I have come to recognize its greater importance. There is a similar story in my work on "voting with your feet," which started with a focus on domestic migration, but gradually shifted more to the international kind, because the gains from the latter are larger.
I won't try to do it here. But, applying the same criteria, we can easily come up with a list of issues that get too much attention, rather than too little.
There is, obviously, plenty of room for disagreement with both my criteria for prioritizing issues, and the application of those criteria to particular cases. But, at the very least, we should recognize that issue prioritization matters, and we need rigorous criteria for deciding which issues matter more than others.
Senate Republicans have called on the IRS to investigate various nonprofits that have helped organize university protests, and see if they should be stripped of their tax exemptions. Would that be permissible?
[1.] The government can't strip groups of nonprofit status based on their ideological viewpoints. This was first made clear in Justice Brennan's opinion in Speiser v. Randall (1958), which struck down a denial of a property tax exemption to people and organizations that "advocate[] the overthrow of the Government of the United States … by … violence … or who advocate[] the support of a foreign government against the United States in the event of hostilities":
[A] discriminatory denial of a tax exemption for engaging in speech is a limitation on free speech. It is settled that speech can be effectively limited by the exercise of the taxing power. To deny an exemption to claimants who engage in certain forms of speech is in effect to penalize them for such speech. Its deterrent effect is the same as if the State were to fine them for this speech…. [T]he denial of a tax exemption for engaging in certain speech necessarily will have the effect of coercing the claimants to refrain from the proscribed speech. The denial is "frankly aimed at the suppression of dangerous ideas."
The Supreme Court reaffirmed this in Regan v. Taxation with Representation of Wash. (1983) and Rosenberger v. Rector (1995): Though "the Government is not required to subsidize" speakers, once it chooses to provide such a subsidy—including through "tax deductions for contributions"—it must abide by "the requirement of viewpoint neutrality in the Government's provision of financial benefits."
And the U.S. Court of Appeals for the D.C. Circuit has specifically applied this (in Z Street v. Koskinen (D.C. Cir. 2015)) to denials of a 501(c)(3) tax exemption, holding that "in administering the tax code, the IRS may not discriminate on the basis of viewpoint"—there, as it happens, against pro-Israel speech that departed from the Administration's foreign policy. There have been some viewpoint-based denials in the past (see Dale Carpenter's post for some examples), but these precedents pretty categorically forbid such denials.
[2.] But nonprofits' right to express viewpoints doesn't extend to a right to violate valid laws (such as content-neutral time, place, and manner restrictions). IRS Revenue Ruling 75-384 deals specifically with that:
I have recently come across two remarkable resources for any of you who are, like me, fascinated [perhaps to the point of obsession] by the early history of rock-and-roll.
