The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002

The Volokh Conspiracy

Coronavirus Daily Death Rates by Country

Very high in Italy and Spain, followed by France, Switzerland, Belgium, and the Netherlands, followed by Denmark, Portugal, Ireland, Austria, the U.S., and Germany.


Every day in the developed world, about 20 to 30 people out of every million die. (The typical yearly death rate is about 7.5 to 10.5 per thousand, depending on how many younger people there are compared to the elderly; 7,500 to 10,500 per million, divided by 365, equals 20 to 30 per million per day.)

Judging by the WorldoMeters data from the last three days, here is the mortality owing to coronavirus, which pretty much adds to that daily death rate (averaging deaths over the last 3 days):

  • Italy and Spain, with 14 to 17 deaths per day per million.
  • France, Belgium, the Netherlands, and Switzerland, with deaths in the 4 to 5.5 per million range.
  • The UK at a little under 3 per million.
  • The US, Germany, Austria, Sweden, Denmark, Ireland, and Portugal, at a little under 1 per million (Germany, 0.9) to a little under 2 per million (Denmark, 1.85); the US is at 1.2, though the daily numbers in the US have risen sharply in the last two days. (Keep in mind, of course, that some of these comparisons may be less significant if countries have different protocols for listing cause of death.)
  • South Korea, China, and Canada are very low, below 0.25 per million (though there may be reason to be even more skeptical about Chinese data than about data generally).
  • Japan and Taiwan have been barely hit at all; likewise for most of the rest of the world outside some Western European countries that I haven't listed. (Russia is ostensibly in this category, though no Russian ever trusts numbers from Russia.)

Of course, the numbers can be much higher in particular regions. News accounts report that 84 people died per day in New York City Thursday and Friday. Over a population of 8.6 million, that's about 10 deaths per day per million, not far off the national Italy and Spain numbers.

Likewise, most coronavirus deaths in Italy are still in Lombardy: 542 in one day, apparently Friday, out of a population of 10 million, for a daily death rate of 54 per million. That means that in Lombardy the daily death rate is basically triple the usual number. (Of course, especially since the dying are mostly the elderly or chronically ill, a much higher than usual death rate now will probably mean a considerably lower than usual death rate after this epidemic passes, because there will be fewer elderly, more-likely-to-die people left, assuming those who survive the illness won't be permanently weakened by it. But in the meantime, it's still people dying sooner than they otherwise would.)

The question, of course, is where are we going? (And, while we're at it, what's with this handbasket?) Will the daily surplus death rate substantially increase? Will it substantially decrease? How quickly? That we do not know.

DHS Adds Workers for Gunmakers, Gun Retailers, and Shooting Ranges to "Essential Critical Infrastructure" List

This is an advisory list, but I expect will have some influence on some local governments.


See here, which lists "[w]orkers supporting the operation of firearm or ammunition product manufacturers, retailers, importers, distributors, and shooting ranges," but prefaces all the categories (not just the gun-related ones) with:

This list is advisory in nature. It is not, nor should it be considered, a federal directive or standard. Additionally, this advisory list is not intended to be the exclusive list of critical infrastructure sectors, workers, and functions that should continue during the COVID-19 response across all jurisdictions. Individual jurisdictions should add or subtract essential workforce categories based on their own requirements and discretion.

The Free Beacon (Stephen Gutowski) notes that, several days ago, N.J. Attorney General Gurbir Grewal defended including gun stores in the N.J. lockdown by saying,

[T]he Governor's executive order tracks every other executive order that has a stay at home provision and none of those—none of those—contain an exemption for firearm stores, nor does the federal guidance from Homeland Security contain that type of exemption when it comes to essential facilities and nonessential facilities. So, we're consistent with every other executive order that calls for stay at home. We're consistent with federal guidelines and we'll defend the Governor's executive order in court.

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  1. Is he just a bald-faced liar (above and beyond ordinary political lying), or was it true at some point that all other such lockdowns did not consider guns as essential, and he is just out of date, intentionally or not?

    1. Sorry, thought it was clear — Gerwal’s statement happened several days before this very recent development. (I’ve revised the post to note that expressly.) I can’t speak with confidence about what other lockdowns had provided back then (I believe New Jersey’s was one of the first), but certainly this DHS guidance wasn’t then available.

      1. Dang, Prof, facts are no fun. It’s hard to let an opportunity to sneer at politicians go by 🙂

  2. I don’t have a problem with this. The problem I do have are those people who think that during an emergency is the time to arm themselves.

    It’s bad enough that 90 year old NRA members have arsenals they will never need or require – now we have n00bs who have never shot a gun who will most likely accidentally shoot the delivery guy who is bringing them their vodka delivery. Wait – vodka would be NRA members. Their beer delivery.

    1. “It’s bad enough that 90 year old NRA members have arsenals they will never need or require”

      Unless they have something somebody else wants, like for example provisions during an emergency during which the police are de-escalating for fear of infection.

    2. Surely no exaggeration there. I remember how all the anti gun predictions of blazing gun battles and blood in the streets came true. Don’t let being wrong stop you from doubling down on the blood and gore.
      IANAL, so please excuse me for not knowing about the needs or requires test in the 2A. What the hell, the guy in your example made it 90 years without shooting anyone, he’ll probably make it a few more.

      An emergency is the right time to buy a gun. The predators see an opportunity and the proposed victims need to be able to respond appropriately.

      1. Gun nuttery is a fetish like any other: obsessive to the obsessed, but barely comprehensible to the rational outsider. But it does have one distinction unique to all other fetishes : Gun nuts need to feel significant.

        Take any other fetish – say, men dressing-up in women’s clothing. If I had to guess, I bet a group of transvestites would be happily content to natter away on high heels & dress size. But get a bunch of true gun nuts together and inevitably they begin to discuss how important their obsession is, desperate to feel their fixation is critical, noble, heroic, and – yes – essential. Professor Blackman recently suggested that guns will prove more essential than toilet paper in these times. Folks, that is Nut Grandiosity in high form. My money is on toilet paper winning that battle.

        So I applaud all these recent moves to placate gun nuts. Short of an actual Zombie Apocalypse, this is probably the one time in their lives when the poor things get to truly feel relevant – and it will be over all too soon. We should humor them while we can….

        1. grb thinks that a cursory understanding of firearms, firearm laws, and the firearms community fed to him by an equally ignorant media is more accurate than the knowledge and experience of those who actually own and shoot firearms, and study the issues around them.

        2. Hoplophobes say there are only 100 million gun owners in the US. Strange how so many gun nutters can cause so little mayhem and so few people are aware of them in spite of their outspoken flamboyant nuttery.

    3. It’s not that as much as the uniformed soldiers (i.e. National Guard) going door-to-door in Rhode Island. The “preppers” fear that the Army is going to come steal their food, and I fear that this will turn into a “shoot first” situation./

      But it’s not just guns — Molotov Cocktails, Punji Sticks, Deadfalls (trees cut to fall on demand) — if you’re paranoid enough and have had enough prep time, it’s not difficult to kill someone walking onto your property.

      And I fear that it’s gonna happen….

      1. The classic is the Native American trick of the sprung Birch tree — you get a rope around your ankle and wind up swinging upside-down off the ground. I’m not going to say how to do it, but it isn’t difficult — the Boy Scouts used to teach this.

  3. Setting up all the chess pieces for the coming legal war.

  4. I truly don’t understand what makes gun stores particularly essential. Under the current conditions, everything that can be closed should be closed, and firearms aren’t a daily necessity like food or medicine. There’s no need to put gun store employees or gun buyers at risk by keeping gun stores open. If you need a gun, you can buy it in a few weeks or months.

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Possible Zoom Video Conversation, With All of You Invited to Watch and Submit Questions via Chat?

I'm toying with doing that with a couple of colleagues -- any suggestions on how to make it work?


I've Zoomed a decent amount with students and friends, but I haven't tried putting together something like this. In a sense, it would be like something at a conference—three or four people having a video conversation for a while (a conversation, not a panel with prepared presentations), and then Q & A, with questions likely submitted via chat rather than via audio.

Any suggestions on how to make it work, other than the obvious (have good participants and an interesting topic)?

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  1. I just used blackboard for the first time in a decade. It seems to have good academic lecture features (raise hand button, moderator able to mute everyone’s video/audio but still take typewritten questions) and allegedly supports 500 participants. They’ve been very friendly in the last few weeks about providing access to educators at reduced or no cost.

  2. Enable the option for anybody in the room to annotate the shared screen.

    enable video for all participants

    Disable option mute participants on entry

    Have a dancing anime girl on your shared screen

    Enable option to stream simultaneously on Twitch and Youtube and put the chat on the shared screen. Enable voiced cheer messages reaching a certain threshold. This way you can even make some money directly.

    invite Brianna Wu and Jim Metokur to keynote the conference with a good natured debate on the topic ‘Apartheid Sucks, Black Separatism Rocks: Change my mind’

    1. I vote for a dancing anime boy. 🙂

  3. Guns and abortion….

    Any questions or comments?

  4. Having been a faithful reader since 2004, I would love this. You, the Ilyas, Josh, and special appearance by Orin!

    Obviously pick a topic or two to discuss.

    Make sure you follow the anti-ZoomBomb guidance that Zoom has published.

    Use the Webinar format – it allows for both free chat and a Q&A module that allows anonymous (and NON-anonymous) question submission. It puts them in a queue for you to choose from. It also disables the Participants list which would be a feature here, imho.

    1. Make sure you follow the anti-ZoomBomb guidance that Zoom has published. Use the Webinar format – it allows for both free chat and a Q&A module that allows anonymous (and NON-anonymous) question submission. It puts them in a queue for you to choose from. It also disables the Participants list which would be a feature here, imho.

      Zoom has a special large meeting license for up to 1000. I would advise disabling video and muting all audio on entry and leave the audience to submit questions via the chat box.

      Kinda putting the horse before the cart here? This is a bunch of dry academics rubbing their beards at each other about stuff not too many people think or care about not a Billy Eilish concert or Trump rally. I’d assume lack of interest might be a bigger problem than too much interest or trolling.

  5. I am not sure how many persons a zoom meeting can accommodate. AT our last faculty meeting we have 280 on the meeting. Everyone was urged to to turn off their video as that uses a lot of bandwidth. The meeting worked very well.
    You’ll need to instruct people at the outset how to raise their hand or how to comment.

  6. My chat questions are as follows: 1-Can Rhode Island stop people with NY license plates during a pandemic to enforce a quarantine – on the basis that New York is a hot spot and public health officials have advised anyone who has left New York in the last 14 days to self quarantine; 2-Can the Federal govt quarantine a state or restrict interstate travel during a pandemic (to slow the spread of disease).

    1. Whether The RI governor has overstepped her authority does not really matter in the short run.
      RI State Troopers are stopping NY licensed cars at the RI CT border

  7. Zoom has a special large meeting license for up to 1000. I would advise disabling video and muting all audio on entry and leave the audience to submit questions via the chat box.

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Social Life Under Lockdown: Tell Us About It


Are you seeing friends and family using Zoom or some such application? Which one, and how is it working out technically?

Have you found some tricks to making it work better, whether they are technical tricks or social ones (e.g., dressing up, eating dinner during the call, drinking during the call, etc.)?

Are you finding that you're actually seeing out-of-town friends and family more now? Or are you actually enjoying having some more time at home by yourselves? Please let us know in the comments.

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  1. My brother sent me an invite to Zoom this morning, but I’ve been ignoring him. Should probably get back to him now, and see how it works.

  2. Yeah, we had a Zoom birthday party for the extended family members born in March. About 20 family locations represented, from as broad an assortment of states. We had a great time. But it was a total technical bust. Not even close to enough bandwidth. Some participants never made it on screen during the scheduled hour—just black backgrounds in the frames where folks were supposed to appear—but voice transmission seemed to work fine from everyone. The ones who did show up almost never budged. A twitch or two, then long intervals of motionless, low resolution frowns. No real responsiveness from the software at all. Each participant reported that his or her own image onscreen moved naturally and looked fine, but no one else did.

    For what it is worth, only a few participants were accustomed to using Zoom, not including me. I have no idea how much bandwidth each participant commanded. My own system tests reliably at 300 mbps. For all I know, we were all doing it wrong.

  3. My son and I are introverts so not much change for us. Am working from home so more zoom and slack calls than normal. Wife is a nurse and remarked that her hospital is seeing more cases now. Whatsapp’ing with friends in S.A. where there is martial law. Staying at home is mandatory with arrests. Glad to be living in the US with more civil liberties. Don’t want to get arrested for walking the dog at 6am or anytime of the day.

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Careful with Those Metaphors …


I don't want to make much of this—I just thought it was a funny glitch, of the sort that all of us fall prey to from time to time. But it might also be a reminder for writers to be careful about using figurative phrases, especially ones that are so familiar that we don't really think about their literal meaning: Sometimes, circumstances bring up that literal meaning, and make the phrase jarring or unintentionally funny.

This is closely connected to the problem of mixed metaphors (e.g., "the political equation was thus saturated with kerosene"). There, the literal meaning one half of the metaphor is highlighted by its mismatch with the literal meaning of the other half. Here, the literal meaning of "lock arms" is highlighted by its mismatch with the substance of the situation.

Thanks to Glenn Reynolds (InstaPundit) for the pointer.

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  1. Together, we’ll show those viruses what we’re made of!!!…. ur, we won’t show those viruses what we’re made of.

  2. Ms. Widmer is threatening administrative action against doctors who treat SARS infections (that IS the name of the virus) who prescribe hydroxychloroquine to folks in danger of dying.

    She is dangerous to the health of the sick and dying.

    1. Given the currently available evidence and its reliability, what in your considered medical opinion should be the criteria for use of hydroxychloroquine to treat this particular virus, covid-19, in humans? Does your answer take into account all of the relevant considerations (e.g., proven or likely efficacy; known and unknown risks) and properly weighed them? I ask so as to be clear whether you are expressing a medical opinion grounded in facts or a political one based largely on a libertarian point of view.

      1. Off-label prescribing is not only protected by Federal law, but we wouldn’t have transgendered people if it wasn’t because the hormones they are taking are being prescribed off-label.

        I’m not saying if this drug is effective or not — what I am citing is FDA policy that licensed MDs can prescribe any licensed drug for “off label” things — and that no state has the authority to say they can’t. And second, there is the “Right to Try” that was established in response to AIDS, and if you are gonna die anyway, Federal law lets you try stuff that may be totally useless.

        A state’s Governor doesn’t have this authority.

        1. ” that no state has the authority to say they can’t” State medical licensing boards have no control over the way physicians practice and can’t stop them from doing crazy stuff with meds, as a few do from time to time. I think they do have such power and have exercised it many times, those boards serving at the direction of their governors.

          I don’t think “Right to Try” laws are as permissive as you suggest. And I don’t think they have much relevance in cases of acute infectious diseases that will not be on for very long before eventuating in recovery or death. Where those laws may pertain is with cases of cancer and degenerative diseases.

          1. [There’s no “edit” function on this platform? That’s a definite shortcoming that wasn’t here when the VC was with the WaPo or earlier on its own.]

            ” RIGHT-TO-TRY LAWS are U.S. state laws and a federal law that were created with the intent of allowing terminally ill patients access to experimental therapies (drugs, biologics, devices) that have completed Phase I testing but have not been approved by the Food and Drug Administration (FDA).” Sorry fellows, notwithstanding your certainty, they don’t pertain here.

      2. Leave it up to doctors and hospitals not governors. Trump didn’t order any doctors to prescribe it, he ordered the FDA to make it available to prescribe.

        Now Governors Whitmer and Sisolak are interfering with doctors and hospitals using all the tools available to them.

        1. “Trump didn’t order any doctors to prescribe it…” Of course he didn’t but he encouraged it, though it was so unwise for him to do so, especially under the current circumstances. Can you point to respected members of the medical community who are promoting the wide use of hydroxychloroquine or chloroquine? I know of none at this time.

          “…he ordered the FDA to make it available to prescribe.” “Off label” use of approved and marketed drug already permitted it, so no need for such an order. What is being demanded of FDA, wisely or unwisely, is looser strictures on clinical trials (however sloppy) of these meds not out there as antivirals.

          “using all the tools available to them,” proven and unproven ones alike.

  3. How often does “lock arms” have literal meaning other than when playing Red Rover? So infrequently that it is hard for me to see this as a mixed metaphor except for those who are really concrete in their thinking.

    Those people will stumble on mental status exams when asked to interpret sayings like, “A rolling stone gathers no moss.” They may offer as an explanation that stones that roll won’t have moss attach to them, or something like that, thereby missing the intended meaning that most people will readily apprehend.

    “Every cloud has a silver lining” will puzzle them because it has no literal meaning. That may not exactly qualify as a mixed metaphor, but it is very much like one inasmuch as it is again a matter of the literal vs figurative meaning or implication. Give those “concrete” interpretations and the examiner may think he/she is onto a schizophenic, because schizophrenics are liable to answer that way, unable to handle the simple abstraction.

    EV, do you think this Widmer “locked arms” utterance is a very clear instance of a mixed metaphor? I don’t.

  4. I still remember “giving them space to riot” — and as bad as that clueless woman was, I honestly don’t think she quite meant what she said….

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Hospital Liability for Ventilator Shortages


If a hospital runs out of ventilators to treat its patients, will it be liable when patients die as a result?

Courts have at times imposed malpractice liability when a hospital failed to provide a service that might have benefited a patient. For example, in Herrington v. Hiller, 883 F.2d 411 (5th Cir. 1989), the plaintiff alleged that a baby was born with brain damage as a result of a hospital's failure to provide 24-hour-a-day anesthesia services, and the court found admissible earlier discussions among hospital personnel about whether such services might be needed. More generally:

Hospitals and other institutional providers have a duty to provide adequate staff and services to deal with unexpected medical problems. Hospitals, like physicians, are expected to keep up with an evolving standard of medical practice, particularly if its cost-benefit ratio is high. The failure of a hospital to maintain adequate services to deal with medical emergencies can create liability.

Barry R. Furrow, Enterprise Liability and Health Care Reform: Managing Care and Managing Risk, 39 St. Louis U. L.J. 77, 91 (1994) (footnotes omitted). Also:

Both hospitals and hospital management companies have been found negligent for failure to exercise reasonable care in the maintenance of the hospital's facilities and equipment. The duty to maintain adequate facilities and equipment requires hospitals to have the facilities and equipment necessary to safely carry out the medical treatment it offers.

Mindy Nunez Duffourc, Repurposing the Affirmative Defense of Comparative Fault in Medical Malpractice, 16 Ind. Health L. Rev. 21, 28 (2018) (footnote omitted).

Hospitals, of course, would argue that they have an obligation to maintain sufficient equipment for ordinary times, not for pandemics. Assuming a hospital maintains a typical ICU capacity for hospitals, it would have a strong argument to having met the community standard of care.

If a court in its instructions emphasizes custom, hospitals may mostly be free of liability. But if a court instructed juries to apply the Hand formula, or instructed juries in a way that would implicitly allow them to consider cost-benefit type considerations, the result might well be different. A pandemic was not unpredictable, and a likely cost-benefit analysis would likely suggest that ventilators should have been purchased. If a ventilator costs $25,000, then at a value-per-life of just $5 million, the purchase would have been cost-justified if there were a 1 in 200 chance that it would be necessary–or an even lower chance if a single marginal ventilator might be used for more than one patient.

Stephen Gillers has noted that although the Hand Formula is often treated as black-letter law, jury instructions rarely mention it, but nor do they forbid the jury from applying similar considerations:

[A] puzzle lies in the gap between the authoritative blackletter status of the Hand Formula and the standard instructions given to juries in negligence cases. The proposition that negligence means creating an "unreasonable risk," defined as one whose expected costs exceed the costs of avoiding it, has been explicitly endorsed by the Restatement of Torts, by the leading treatises, and by courts in most states. Indeed, despite the vigorous normative debates over cost-benefit analysis among legal academics, no modern decision to my knowledge squarely rejects the Hand Formula interpretation of negligence. Yet, rather than telling juries to balance the costs and benefits of greater care, courts ordinarily instruct them to determine whether the actor behaved as a "reasonably prudent person" would have under the circumstances. Even on appeal, many courts make surprisingly little use of cost-benefit analysis in reviewing negligence cases. Often, the only question on appeal is whether a reasonable jury could have found a party negligent under the reasonable person standard.

Some scholars claim that these practices demonstrate that the actual meaning of negligence in American law is defined by a reasonable person standard that marginalizes or even supplants the Hand Formula. Although these accounts vary in important particulars, their common theme is that the determination of negligence rests on a noneconomic conception of practical reasonableness that looks to community values and norms rather than to any form of cost-benefit analysis.

But the crucial feature of the pattern jury instructions on negligence is that they explicitly adopt neither of these competing theories—nor any other. Juries are told neither that a reasonable person is one who complies with community values and norms nor that a reasonable person is one who balances costs and benefits (or behaves "as if " balancing them). Instead, the reasonable person standard is given to the jury without elaboration.

A jury would not likely engage in explicit cost-benefit balancing. But it seems to me plausible (though I would welcome comments from those with more immediate experience) that a jury might well conclude that hospitals should have recognized the need to purchase enough ventilators to handle a surge in patient capacity. A plaintiff's case might be especially strong if a hospital had time between when an emergency loomed and when a patient died to purchase a ventilator that would have saved the patient. Juries, meanwhile, would likely be more sympathetic to hospitals that, early in the emergency, contracted to purchase ventilators (at least simple models) as soon as they were available.

Normatively, I am not sure whether hospitals should be liable. There is a strong argument that if one opens a 1,000 bed hospital, one should not be liable for not opening a 2,000 bed hospital. Liability might create a disincentive for small hospitals to open in the first place. On the other hand, it is difficult to identify an actor in a better position to anticipate potential needs for emergencies or to identify an actor that now will have strong incentives to provide demand for ventilators.

A related but separate question is whether doctors and medical professionals should be held to a lower standard of care during emergencies:

[I]n the wake of events like Hurricane Katrina and the H1N1 pandemic, there have been proposals to change the ordinary standard of care during declared emergencies. This idea is called "altered standards of care," and suggests that there should be different standards that health care workers are held to during an emergency. Broadly, a public health emergency exists when a health situation's "scale, timing or unpredictability threatens to overwhelm routine capabilities." There has been significant research into, and creation of, altered standards of care for volunteers and Good Samaritans who help during emergency situations. Many of these regulations provide immunity to these individuals.

Rebecca Mansbach, Note & Comment, Altered Standards of Care: Needed Reform for when the Next Disaster Strikes, 14 J. Health Care L. & Pol'y 209, 209 (2011) (footnotes omitted). One would not want to discourage a doctor from working during the emergency because the doctor cannot provide care of the same quality as the doctor would ordinarily provide. But that is a different question from whether health care institutions should anticipate emergencies and stock up.

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  1. After SARs, California Governor Schwarzenegger had a stockpile of masks and ventilators established for the next epidemic. Governor Jerry Brown got rid of them in 2011 to save about $5-6 million a year in maintaining the the stockpile. That was about 0.25% of the budget. The hospitals used the masks instead of buying new and most of the ventilators were used as parts or whatever – no one seems to know.
    Culpability, anyone?

    1. Sovereign immunity. Governments can screw up pretty much all they want, with impunity.

    2. If you are trying to make a partisan point – at least get the numbers correct. The 2018/2019 California budget was $190.3 Billion. The $5.1 million to maintain them is not even a rounding error.

      But that’s besides the point that BOTH Republicans and Democrats throw out disaster funds during any budget crisis. And then conveniently forget about them when the crisis is over. Just look at Trump’s administration and not filling the necessary roles for handling such issues. Or eliminating them entirely. If you want culpability – just look at the leader of your cult.

      1. It’s also ignoring that politicians of every stripe take credit for everything and blame for nothing. Trying to hold politicians culpable is an exercise best left to the ballot box.

  2. If a hospital can’t expand to add more beds without a certificate of necessity from the state, does that add an element to what a Reasonable Person (as hospital executive) might do? Granted that certificates of necessity aren’t required for all types of hospital equipment — lets assume for argument that they are not required for ventilators — but the number of beds in the hospital would have some bearing on the number of ventilators they might need in extremis.

  3. If, as NYS Governor Cuomo claims, ventilators are no longer available at any reasonable price, it might be hard to fault a hospital if it runs out and patients die as a result.

    Moreover, as the Washington Post noted, even if ventilators were somehow to become available, many hospitals, cities, and even states may be reluctant to purchase enough ventilators, at about $50,000 each, to cover the worst case ventilator-shortage scenario, since they will soon no longer be needed of the crisis period is over and they will have to be put into storage.

    But the story with CPAP and similar breathing machines may well be a different story.

    The FDA has just recommended and authorized CPAP and similar breathing devices to be used for those COVID-19 patients who need breathing assistance, but do not necessary need the full power and sophistication of hospital ventilators.

    This is very important because there are millions already in use for less serious problems, such as snoring and sleep apnea, which could be acquired immediately from users who volunteer them, or are induced to do without them for several months for a financial reward.

    It also appears that there are many thousands in warehouses, and therefore immediately available from medical supply companies. Thus many could also be made available very quickly, and at far lower cost (~$850/each), than ventilators.

    Unlike conventional hospital ventilators – CPAPs has been called “poor man’s ventilators” – they are simple and very inexpensive, and are produced by dozens of different manufacturers.

    Thus production from these companies could be increased quickly if testing indicates that they can be lifesavers for at least some COVID-19 patients.

    CPAPs and similar breathing devices could also be produced more quickly and easily by other companies than much more complicated and expensive ventilators.

    In addition to the FDA’s validation and legal authorizations to use CPAPs and similar breathing devices to treat some COVID-19 patients, there is medical evidence explaining how and why they can be valuable.

    There is also an abundance of anecdotal evidence suggesting the same, including the experience of a physician skilled regarding ventilation issues who told me that he successfully used a CPAP machine, with a simple oxygen concentrator, to help an individual with COVID-19 to recover.

    At a time when some are seriously contemplating dealing with ventilator shortages by forcing 2 to 4 patients to share one ventilator despite major concerns about “the inability to monitor the impact on each individual; the potential for cross-contamination of infectious pathogens; and the possibility that instead of one person receiving lifesaving treatment, multiple patients would get dangerously subpar therapy,” [NY TIMES – ‘The Other Option Is Death’: New York Starts Sharing of Ventilators] at least testing other alternatives, especially those without those many risks, and where the tests can be conducted at much lower costs, would seem to be an appropriate alternative.

    Thus a failure to at least try using CPAP and similar breathing machines is more likely to result in liability if a patient died than if a shortage of ventilators led to the same result.

    1. That seems to fall under the “lowered standards of care” and should be possible without being held liable and without needing government permission. But I don’t know the legal practicalities of that; I seem to remember that good samaritans who screw up used to be liable until laws were passed exempting good faith efforts.

    2. Something like 3.3 million people have just applied for unemployment. Almost every one of them has two things that can be used to ventilate patients: hands. Ambu bags and endotracheal tubes (ETs) are not in short supply. Things to cause air to flow through the ETs are. It’s a lot less specialization than brain surgery to teach someone how to squeeze and ambush bag, and it requires surprisingly little strength to do it. If three people/8-hour shift were hired–and adequately protected with PPE–the cost would be small.

      As for hospitals reasonably anticipating a pandemic, the reasonable question is “what type of pandemic?” This one seems to be respiration-related, so we’d need to have–how many??–extra ventilators. The $25k cost figure ignores too many variables: 1) maintaining them in working order, which means testing them every so often; 2) making necessary repairs; 3) discarding them when the next great model comes along that fills still other functions that will be deemed necessary; 4) hiring people to maintain them–along with the overhead costs, like insurance, etc.; 5) having available people to run them–same extras as #4; 6) paying rent for air-conditioned humidity-controlled (they have soft gasket seals that can’t be allowed to dry out) space to store them…. The list goes on and on. It ain’t $25k a pop.

      A better cost-benefit analysis would reason that the average life of a ventilator is maybe 10 years if it’s not being used. To address this particular crisis might require 1 million ~excess~ ventilators. If you have to replace them every 10 years, then every century (if that’ show often the excess are going to be needed), that’s now $250k/ventilator–just for the devices–plus maintainers and operators. And the operators for the excess aren’t even needed unless there is a respiratory crisis.

      Next up: a myocardial-attacking bug [heart muscle]. How many cardiac ICUs does a hospital have to be able to have for that crisis? How one that attacks the GI tract preferentially? What extra supplies, etc. are needed for that?

      To quote Monty Python, “no one expected the Spanish inquisition.”

  4. If a ventilator costs $25,000, then at a value-per-life of just $5 million, the purchase would have been cost-justified if there were a 1 in 200 chance that it would be necessary–or an even lower chance if a single marginal ventilator might be used for more than one patient.

    Only true if the hospital has an unlimited budget, and I’m not aware of any hospital that does.

    The purchase of a marginal ventilator should be weighed against alternative uses of available funds. If you can spend the $25K on something that, in expectation, will save more lives than the ventilator, then buy that other thing instead. If the hospital gets a $25K windfall just the fact that spending it on a ventilator will save some threshold number of lives doesn’t mean that spending it some other way wouldn’t be better.

    Basically, the (abstract) rule should be that each dollar should be spent in the way that saves the most lives (or QALY’s or something else if you prefer) at the margin.

  5. There are over 6000 hospitals in the country. How can one hospital be blamed in a civil suit for having more people come to its doors than it was designed to accommodate? Like a lot of things, the ventilator shortage will be one of geographic distribution. Ample ability to ventilate patients here in fly-over land, at least for the moment. And in all likelihood there will never be a point in time where the number of patients needing vents within the country will exceed the total number of vents; simply will be an issue of regional supply-demand imbalance.
    Its sort of like the chronic situation with donated vital organs. New York is perpetually supply deficient for the number of people on the waiting list. For whatever reason people in that area of the country choose not to donate at the necessary rate; so not much different than the ventilator situation.

  6. Here is something that single payer medicare proponents are not saying. If we go to government single payer socialized health care that would no longer allow for suing the doctors and hospitals for malpractice, It would be the federal government that would control what the doctor and hospital could or the cost of medical services would still be high. How could the doctor or the hospital supply all the latest equipment if the government does not allow high enough payments for the service rendered to provide all best equipment. If the doctors and hospitals cannot afford to have the latest medical equipment then why should they have to foot the bill if there is a failure because of the lack.

  7. Are hospitals better positioned than the CDS to predict pandemic
    demand? But suppose they are. By the logic here, why can’t they then approach any other random person or company and say: “We’ve identified that spare ventilators are worth the cost, but we’d rather not pay for them – instead you should pay instead because, now that you (like us) know about the issue, it will be YOU that will be also liable in case of a pandemic if there aren’t enough and you didn’t take the cost-benefit required action.”

    After all, the hospital doesn’t create or control the pandemic hazard. (If anyone even can influence it, why not go for airlines and cruise ships first?) The argument that a 1000-bed hospital shouldn’t need to provide 2000 beds (or whatever a pandemic based calculation might suggest) IS strong and applies with equal force to ventilators.

  8. A liability that one can more easily connect the dots from duty to causality to injury is the hospitals lack of personal protective equipment. Whereas hospitals do not know what patients, or how many patients will come in the door tomorrow, next week, or next month, they do know exactly who their employees and contractors are. They know what size N95 mask each person wears (documented annual fit testing and training is mandatory), as well as gown size and glove size. And their infection control officer also knows that every non-pandemic day the need for this equipment is twice what is actually used, because they know provider compliance rates for PPE use for ‘routine’ isolation practices. They also know and once or twice a decade plain old flu seasons experience 2 or 3 times as many isolation patients. So they have to always be prepared for at least that much surge in demand, plus a reasonable reserve to cover other other foreseeable contingencies.

    Hospitals have a duty to provide a safe workplace, with specific mandates in health care for specific use of PPE in defined situations. The risks to employees is amply documented (hence the safety regs.) and causality is easy to infer by a preponderance (‘how many people cough in your face at work a day, dozens, versus at home, just the dog). And the harm, anything that follows from the health effects of the communicable illness.
    I am documenting daily each instance when I am unable to receive from my hospital necessary PPE, and date/time, and location (no patient identifiers to avoid HIPAA violations), which should be quite sufficient for the lawyers to backtrack within the EMR which patient’s chart note corresponds to that date/time/place.

  9. “…If a court in its instructions emphasizes custom, hospitals may mostly be free of liability. But if a court instructed juries to apply the Hand formula, …”

    I have a general suggestion: In your article, you refer to the “Hand formula” many times. I quoted your first use, directly above, but you use it over and over in your article. Maybe include a short description before your first usage? Or include a link to a description. I doubt any non-lawyer has the slightest inkling what the Hand formula is…and likely that many many lawyers also do not know this.

  10. Reality is Jury Nullification and similar fun things.

    Reality is that this will be a political question and not a legal one — when we come out of this, the attitude of the public towards the hospitals will decide this — not the law. If Joe Sixpack and Suzy Sweatpants feel that they were under the boot of authority (which we increasingly are), there’s going to be a “get evenism” in response and it will show up in jury decisions/awards.

    Yes, “get evenism” — it will happen…

    1. The other thing — and this applies to malpractice suits in general — is that how the patient and/or patient’s family feel they were treated is far more important in the question of if a malpractice suit is filed or not than the actual medical facts.

      If they feel that the hospital did its best, they likely won’t sue — but if they feel it didn’t, you’d best get ready for a suit…

      1. True. There’s been a bunch of research on this. If a doctor (nurse, etc.) screws up, it actually helps if he or she goes into the room, apologizes, is sincere, etc.. You’d think that this sort of admission would lead to more malpractice suits. But no . . . as Dr Ed says, it’s very very very common for such a patient (or the patient’s family) to mostly want acknowledgement that a mistake was made, that the person responsible feels remorse, and that there is some indication that the mistake won’t be repeated in the future.

  11. Interesting that courts have stated that the government/law enforcement community has no liability to protect a citizen from violent criminals, but now we are to consider that hospitals, which already have liability for failure to protect from common disease states, also are liable during a once-a-century pandemic. One that may have been predictable in general, but as stated previously, happens to affect the lungs and so ventilators are in short supply. The next one may affect the heart, as suggested, but why not kidneys with a severe shortage of dialysis machines? This does not even get into the problem that these devices are not plug-and-play, but require highly trained physicians, nurses, and technicians to run them. You can, with enough money, store enough equipment for most crises. Where will you find the people?

    1. In an emergency, you can teach well-intended people with average intelligence enough to be moderately competent at almost anything.

      It may be “keep the needle there and turn this dial to do so” but you’d be amazed at what bystanders can accomplish when told to “hold this”, “do that.”

      1. Dr Ed-
        You are correct in what you write, but you know that when mistakes are made and patients die, the hospital will be held responsible, “You had all these machines because you knew they would be needed some day. You are liable for not maintaining staff to run the machines.”
        I wish I were wrong.

  12. re: “Hospitals, like physicians, are expected to keep up with an evolving standard of medical practice, particularly if its cost-benefit ratio is high.”

    What is meant is the opposite: “Hospitals, like physicians, are expected to keep up with an evolving standard of medical practice, particularly if its cost-benefit ratio is low.”

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Free Speech

"Can ProctorU Be Trusted With Students' Personal Data?"

An interesting post by Paul Alan Levy (Public Citizen) on a demand letter ProctorU sent to UCSB.


See here for more; here's an excerpt:

The saga begins with a faculty association at the University of California at Santa Barbara, which heard about a potential problem with the data-sharing policies of ProctorU, a business that provides internet-based test monitoring services. The group took a look at the ProctorU privacy policies and did not like what they saw—in their view, it provided too little specificity about the limitations on data-sharing, and no protection for the data in the event that ProctorU were to go into bankruptcy or merge, possibly without restrictions on use of the data…. The faculty association voiced its concerns in a letter to the leadership of the University of California at Santa Barbara, urging them to stop using ProctorU and to avoid using "any other private service that either sells or makes students' data available to third parties." The letter was discussed in a story in the school's student newspaper.

It is apparently ProctorU's position that the faculty association's concerns are overwrought. I have no opinion about that dispute.

But instead of simply saying so, ProctorU hired attorney Lucas, who sent a blistering demand letter to the faculty group, accusing it of defamation, of linking to ProctorU's web site without permission (so what?), of copyright and trademark infringement, of a bad faith violation of the federal anti-cybersquatting law (ACPA), and of wilfully interfering with efforts to mitigate civil disruptions stemming from the COVID-19 pandemic….

You can read the demand letter itself here.

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  1. I’m sure there were a couple billable hours in there which, in this time of work shortages due to corona, are certain to be valuable to Attorney Blistering Invective.

    More to the point, is the university so darned cheap that it won’t have faculty proctor their exams? Or is this a function of doing everything online such that specialists are needed to see if there’s cheating going on?

    1. Well, yeah, right now the goal is to do close to everything online. And, yes, it does take some specialized expertise to detect and deter cheating – expertise that the average college professor is unlikely to possess.

  2. Sounds like an admission the concerns are warranted.

    1. The more I think about this, the carbon copy to the State AG might come back to haunt him. A good AG would refer this to the Consumer Protection division, and someone there might come to the same conclusion…

  3. Four thoughts.
    1: Disgusting things like this happen in higher education a lot more often than people realize, and spineless administrators more often than not pander to these bullying attorneys. Look at the carbon copy list — to the US Attorney?!? Why is this her(?) problem? That’s intimidation, nothing less.

    2: It’d never happen, but I’d love to see either the US Attorney or the CA AG refer this to ED’s FERPA Compliance Office and ask for an advisory ruling relative to the issues that the union raised about student privacy. That’d blow up big time in the face of one bullying attorney because they’d say that FERPA applies, and you can’t sell student data.

    3: I contrast to the Top Chef extortion trial where it was ruled that Federal law carved out vast exceptions for what a union may do in a job action. In this case, the Teamsters “were accused by the Top Chef cast and production crew of shouting racial and homophobic slurs at the cast and crew, slashing tires, damaging equipment, and using physical violence outside Milton restaurant Steel & Rye in 2014.” See:

    Yes, different circumstances, but threats to murder versus what this union did. Wow…

    4: Not mentioned here are the students — the university can not unilaterally re-write the contract and force them to surrender this private information to a private company. I’d refuse to.
    My position would be that I paid for an exam to be administered by a university employee, and damn it, that’s what you are going to provide me. Next month, next year, whenever — you are obligated to provide me that (or refund my tuition dollars).

    FERPA is such that you can’t post exam grades with social security numbers anymore, yet you can give them to a private company to sell? Wow… (Paging US Dept of Education, Paging US Dept of Education…)

    No. Not even in an emergency.

    1. Here is ED on FERPA:

      NB: The US Dept of Education is ED because the US Department of Energy came first, and hence they get to be called DoE.

  4. Invoking a federal prosecutor in an attempt to arrange a commercial benefit for a client was an apt grace note. In my jurisdiction that could arrange a trip to the disciplinary board.

    This letter might explain why I had never heard of this large law firm from the Deep South.

  5. This story reminds me of the Theranos whistle-blowers who received threatening letters from the famous attorney David Boies.

    What does legal ethics say about attorneys who send threatening but baseless letters designed only to intimidate and scare? It seems to me akin to protection rackets where one hires thugs to threaten victims to pay protection money. But it’s almost normal behavior. There may be a time when all of us want to hire an attorney to send a bogus threatening letter on our behalf.

    With governments going berserk with civil forfeiture (highway robbery), attorneys sending phony letters (protection rackets), and judges ruling because of partisan bias, it should not be surprising if citizens loose respect for the rule of law.

    1. Legal ethics asks, “Did the check clear?”

    2. “What does legal ethics say”

      Dead men tell no tales.

  6. Great customer relations strategy you got there, ProctorU. Way to really bring in the sales.

  7. Whereas before the faculty only had suspicions, now they have concrete evidence, this letter, explaining why the university needs to drop ProctorU like a hot potato if it doesn’t want to tangle itself in a web of litigation with a company that has stated its interests clearly and expressed no interest In protecting students’ privacy. If the company runs off with or sells the students records, the University may well be liable for it.

    I would consider a reply to ProctorU’s counsel thanking him for explaining why working with ProctorU will inevitably lead to a thicket of litigation and for clarifying why, if the University wishes to avoid further liability, it would be in the University’s best interests to drop the relationship.

    1. It’s not just liability — FERPA compliance is a condition of receipt of Federal monies (including their students receiving Federal FinAid). While it’s never happened (yet), the ultimate threat to IHEs is the elimination of this money.

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Texas Cities and Counties Can't Close Gun Stores as Part of Coronavirus Closures

So opines the Texas AG, interpreting Texas state statutes (and not needing to consider the Second Amendment).


From a Texas Attorney General opinion issued yesterday (No. KP-0296):

Dear Representative Burrows:

You ask whether city or county officials may prohibit the sale of firearms through an emergency declaration that excludes firearms retailers as essential businesses.

Multiple provisions within the Government Code recognize governmental entities in Texas may require additional authority during times of disaster to address emergency situations. Relevant here, the Legislature authorized the presiding officer of a governing body of a municipality or county to declare a local state of disaster. {Your question is limited to municipal or county authority to restrict the sale of firearms. You do not ask about, and we do not address, any emergency authority the Governor has to limit or suspend the sale of firearms during a disaster declaration. See Tex. Gov't Code § 418.019 ("The governor may suspend or limit the sale, dispensing, or transportation of alcoholic beverages, firearms, explosives, and combustibles.").}

Once a local state of disaster has been declared, the "county judge or the mayor of a municipality may control ingress to and egress from a disaster area under the jurisdiction and authority of the county judge or mayor and control the movement of persons and the occupancy of premises in that area." Pursuant to that authority, some counties and municipalities in Texas, in recent days, declared local disasters due to the spread of the disease COVID-19 and issued orders requiring all non-essential businesses to limit or cease operations. You indicate  that  some  of  these  orders  exclude  firearms  retailers  as essential businesses, thereby prohibiting or restricting those retailers from operating their businesses.

While the Legislature granted local officials certain emergency powers to address disaster situations, that local authority is not without limitation. Relevant to your question, provisions in the Local Government Code prohibit municipalities and counties from regulating, among other things, the transfer, possession, ownership, or sale of firearms, "notwithstanding any other law." Section 229.001 of the Local Government Code prohibits certain municipal regulation:

Read More

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  1. But the governer apparently can, at least until he tries and gets hit with a lawsuit.

    1. The governor has the statutory authority — the question will then be whether the Second Amendment or the right to bear arms in the Texas Constitution limits him from exercising it.

      1. Brett is referring to Gregg Abbot getting sued for exercising his authority as a gov to fire someone for drunk driving.

        1. No, actually I meant what Eugene said: That he had the statutory authority, but would it hold up if challenged?

        2. mad_kalak: Do you have any more details on that? I hadn’t heard of it. (I was involved in a case in which Rick Perry was prosecuted for exercising his authority as governor to veto certain appropriations, in order to pressure a local prosecutor who was guilty of drunk driving into resigning.)

  2. Clingers gonna cling.

    So far and so long as their betters permit, anyway.

    1. Good luck with that.

      You and the rest of your “betters” are going to have severe logistical problems disarming a populace that knows that their inalienable right to life, liberty, and the pursuit of happiness requires that the right to keep and bear arms not be infringed. Our fight for self determination began 245 years ago with an armed response to an attempt by the despotic and authoritarian government, of the time, to disarm the populace. The moral justification for our government is through consent of the governed. Removing the right to forcibly reject usurpations of our right of self determination is the first step in denying that right.

      1. Disarming?

        We are experiencing temporary measures designed to address a national health emergency, a point even the most disaffected, anti-social, half-educated, paranoid, downscale, gun-fondling, backwater, right-wing malcontent should have noticed by now.

        Why not sit back, prop your feet, grab a good beer, enjoy some solitude, and resume getting stomped in the culture war? Or contemplate replacement.

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Today in Supreme Court History

Today in Supreme Court History: March 28, 1955


3/28/1955: Williamson v. Lee Optical decided.

Short Circuit: A Roundup of Recent Federal Court Decisions

A cold prison, a suspicious suicide, and federal advisory committees.


Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

New on the Short Circuit podcast: cert petitions, a prison shank public records request, and an arrest for being a smart mouth. Click here for iTunes.

  • For years, scientists could serve on EPA advisory committees while also receiving EPA grants. In 2017, the EPA put a stop to that. A group of scientists sues. Scientists: By excluding the many scientists who rely on agency grants, the EPA has ensured that an uneven number of advisory committee members now hail from regulated industries. That violates the Federal Advisory Committee Act. EPA: The courts can't review any of the scientists' claims. First Circuit: Yes we can. The case can proceed.
  • The feds give out grants to state and local law enforcement under a program called the Edward Byrne Memorial Justice Assistance Grant Program. May the attorney general withhold grants from so-called sanctuary cities and states that refuse to share information with the feds about, or allow them access to, arrested undocumented immigrants? Siding with three other circuits, the First Circuit says no. (The Second Circuit created a split last month.)
  • Somerville, Mass. police officer is forced into retirement after the dep't learns he is nearly blind in one eye. First Circuit: Could be a violation of the Americans with Disabilities Act, among other things. In his 19 years of service, his monocular vision never seemed to have caused a problem, and, though the dep't claims high-speed pursuits are an essential element of his job, that may or may not be true, and in any case he may be able to safely conduct such pursuits. Back to the district court for more fact-finding.
  • Public defenders sue the feds after access to their clients in Brooklyn, N.Y. prison is repeatedly denied on short notice, and, after reports that heating had failed during a period of intense cold, prison officials refuse to provide info on their clients' well-being. District court: The defenders lack a cause of action under the Sixth Amendment; the right to counsel belongs solely to the accused. Second Circuit: Not so fast. The district court needs to give that claim, plus another about whether prison officials violated Bureau of Prisons policies on attorney-client visits, a closer look.
  • Outside the trial of a Baltimore gang leader who allegedly murdered a witness, some of the defendant's friends hold up their cell phones near a juror. She tells the other jurors, "guys, this is really serious, they're taking pictures of us." The judge investigates, thinks nothing happened, and dismisses the worried juror. The remaining jurors convict. Fourth Circuit: Dismissing the worried juror was not enough. The judge must hold a hearing to decide whether other jurors were afraid of gang retaliation—and thus possibly biased against the defendant. Dissent: It was just cell phones.
  • Man is shot in the chest while handcuffed in the back seat of a cop car. He dies. Iberia Parish, La. police say he committed suicide and that they must have missed a gun when they patted him down. His family sues, and the parties settle. A judge seals the record and makes the settlement terms confidential. Fifth Circuit: No way. This is a matter of local and national concern, and the record should be opened.
  • We may have thrice said police can't conduct Terry stops to investigate mere misdemeanors, notes the Sixth Circuit. But that was dicta; police officers can absolutely do that.
  • Allegation: When the Chicago P.D. conducts investigative stops, officers take people's ID and won't return it until after conducting a warrant check. A Fourth Amendment violation? Seventh Circuit: Papiere, bitte.
  • Woman is arrested at protest over Ferguson shooting, released without charge. Rather than returning the $30.97 she was carrying, Multnomah County, Ore. officials give her a debit card that has a monthly service fee (imposed five days after release), a fee for using certain ATMs (with incorrect info as to which machines incur fees), and a fee for requesting the balance of the card by check, among others. Debit card company: There are several ways she could have avoided the fees, like having the funds promptly transferred to her bank account. Ninth Circuit: Her federal law, state law, and Takings Clause claims against the company should not have been dismissed.
  • Goldwater Institute seeks FDA documents related to the approval of an investigational drug for treating Ebola. FDA: Sorry, all documents related to investigational new drugs are confidential. Ninth Circuit: Not from FOIA, they aren't.
  • San Francisco allows owners of units in multiunit buildings to convert to condominiums if they agree to give a lifetime lease to the current occupant. Property owners apply for conversion but then decide they would rather not give the lifetime lease. They sue instead, alleging a regulatory taking. Ninth Circuit: But they failed to seek a timely exemption from the city, so their claim isn't final under Williamson County. Dissent: Finality is about knowing how the law applies, not jumping through procedural hoops, and everyone agrees that the city will not waive the lease requirement. The case should go forward.
  • Turn to the Eleventh Circuit for a sterling opinion about a famous gold bar that, in the court's words, "lived its best life" as a museum exhibit until it was stolen by a thief named Jarred Goldman. There are Spanish galleons, The Goonies, and a holding that famous gold is worth more than its weight in gold. Which is really too bad for Goldman and another thief paying restitution. But just how much more remains to be seen. The thieves get a re-do of the sentencing court's valuation, which may have been too high.
  • Forty-three years ago, an intellectually disabled man confessed to a murder. But newly tested evidence shows that his DNA was not on the bindings used to tie up the victim. The Georgia Supreme Court says he gets a new trial. (via @ASFleischman)
  • Woman pleads guilty to tax fraud in 2011, is sentenced to five years in prison. After getting out of prison on supervised release, she casts a vote in the 2016 election. Yikes! Texas forbids those with felony convictions whose sentences aren't yet complete from voting, which her ballot said in its form language. She's convicted of illegal voting, sentenced to five years in prison. Texas Court of Appeals: We can review neither the decision to prosecute nor the statute's wisdom. Conviction affirmed.
  • And in en banc news, the Second Circuit will not reconsider its decision that the First Amendment forbids President Trump from blocking users from the "interactive space" of his Twitter account, over a dissent that contends that the fact that the president uses the account to tweet official tweets should not mean he is barred from blocking those who tweet meanly in response. (We discussed the original panel opinion on the podcast.)
  • And in more en banc news the Fifth Circuit will reconsider (on its own motion!) its decision holding that the single director structure of the CFPB was constitutional, a decision that was issued on the exact same day the Supreme Court heard oral arguments on the exact same question.
  • And in additional en banc news, the Eleventh Circuit granted rehearing after Judge Newsom wrote a concurrence to his own unanimous panel opinion urging the en banc court to reconsider earlier circuit precedent regarding the interaction of (real) Article III standing and (phony baloney) Fourth Amendment standing.
  • And in further en banc news, the Federal Circuit will not reconsider its decision that (1) administrative patent judges were principal officers and thus should have been appointed by the president but that (2) with APJs' protections against removal revoked, they are converted into inferior officers, and it no longer offends the Constitution that they were appointed by the secretary of commerce. One of the dissenters (from denial of en banc review): We should have given Congress and the agency a chance to fix the issue instead of severing the removal protections.

If the gov't seizes tens of thousands of dollars from you and then returns all of it after you sue to get it back, did you "substantially prevail"? Last year, the Eleventh Circuit said no, thereby depriving Miladis Salgado, who was raided by the DEA after a bad tip, of the attorney's fees necessary to make her whole. (Though the feds released all $15k they took from her, a third of it went to her attorney, who took the case on contingency.) Next week, on Friday, April 3, the Supreme Court will consider whether to grant an IJ cert petition arguing, among other things, that Miladis should indeed be awarded her attorney's fees under the plain terms of the relevant statute. Click here to learn more.

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  1. “dep’t claims high-speed pursuits are an essential element of his job”

    In SOMERVILLE?!? (City next to Boston.)

    A physically fit police officer on a bicycle could get through those congested streets faster than any cruiser ever could….

    1. Furthermore, if one did engage in a high speed chase, it would in almost all foreseeable circumstances be unjustifiably dangerous.

    2. Your constant Massachusetts bashing is becoming tiresome. Please take it somewhere else.

  2. You know, if you conducted a national referendum on the Salgado case I bet you’d get a huge majority in favor of paying her fees, and then some.

    If so, then whose interests are the DEA’s lawyers representing? Not their ultimate client – the American people. Does that matter?

    1. The argument is that it’s really the American taxpayers who will pay her fees if she wins, so by not paying her fees, the court is looking after the interests of the American people. No, I don’t buy it, but that’s the argument. Maybe it’s of value to the American people to not have out of control law enforcement.

    2. There’s a process in place to authorize the government to spend the money that it appropriates from the American people. That process involves more than your subjective determination that a lot of people think spending money in that way after reading a favorable press release would be good. If that process has not been followed, I think it’s reasonable for the government to argue against spending that money.

      1. I am not suggesting that the government lawyers rely solely on my opinion.

        I do suggest that the government can, and should, choose not to pursue a case which would result in an obvious injustice. Yes, that it is an injustice is a matter of opinion, but I’d like to hear the argument that it’s incorrect.

        Your process notwithstanding, there is scope for government officials to spend or not spend money in certain ways. Did these lawyers have nothing else to do?

        Basically, I think that the government should try to act justly, and that when deciding to bring these cases it should recognize that, unlike a private litigant, it has some responsibility towards the individuals on the other side.

        Now clearly you can raise all sorts of examples where this introduces ambiguity, too much discretion, etc. But as I’ve said before, the existence of grey areas does not mean that there are no black or white areas.

        1. In this case, the claimants filed a motion that argued that the government was legally required to pay them $770,000. Are you saying you think the government should have agreed and paid them even though it believed doing so was not required (a legal conclusion that every judge to review the case has agreed with)?

          1. I don’t see anything about $770,000.

            What I see is that it took her years to even get $10K back, and that the government used a sleazy trick to avoid paying her legal fees.

            What I think is that early in the process someone somewhere should have said, “This was a mistake,” and given her the $15K plus any fees she incurred trying to recover it. Instead they decided to show what hardasses they could be, and accomplished half of that.

            1. The trial court forfeiture action is U.S. v. $70,670.00 in U.S. Currency, $101,629.59 in U.S. Currency Seized From Wells Fargo Bank Cashier’s Check No. 6648201039, and $30,000.00 in U.S. Currency Seized From Chase Bank Cashier’s Check No. 1178710368, 1:15-cv-23616-DPG (S.D. Fla.). The claimants’ motion seeking $773,178.75 in attorney’s fees is ECF No. 141. If you know somewhere to host the PDF, I’d be happy upload it for folks without PACER.

              1. So did the Feds actually seize $770K from her, and not $15K?

                When you brought up the number I thought it reflected some kind of inflated damage claim.

                If it’s what they took, then yes, they should have given it back without fighting it.

                1. Her husband ran a garment business which came into possession of (and sold) stolen merchandise. When the manufacturer contacted him, he closed out his bank accounts to make it harder for them to collect. This is the money that the DEA seized (in the amounts listed in the case name).

                  While the forfeiture case was ongoing, the manufacturer obtained a civil judgment. The government filed a motion saying that the case was moot: if the money was returned, the manufacturer would get, and if the government won it would turn the money over to the manufacturer anyway. The trial court agreed with that. (The couple reached a separate settlement with the manufacturer that resulted in about $15,000 going to Ms. Salgado, with about $5,000 of that going to her lawyer per their fee agreement.)

                  After the judge dismissed the case, the claimants (who were all represented by the same lawyer) filed a motion asking for an additional $770,000 in attorney’s fees. The entitlement to this additional sum was the subject of the appeal and now the cert petition.

  3. “We may have thrice said police can’t conduct Terry stops to investigate mere misdemeanors, notes the Sixth Circuit. But that was dicta; police officers can absolutely do that.”

    The panel’s reasoning is actually pretty persuasive. A bright line rule for misdemeanors is hard to square with the reasonableness/totality of the circs tests usually deployed in determining whether reasonable suspicion exists. Also there is hardly a bright line anymore between misdemeanors and felonies in terms of their severity. Some states dont even classify crimes as such!

    You guys are so glib and snarky, reading these posts is like going on twitter

  4. Are judges embarrassed when they get appellate rulings like the Iberia Parish Sheriff’s Office case? It sounds like they’re suggesting the Magistrate Judge Whitehurst should maybe have studied a bit harder.

    1. “Are judges embarrassed…”

      It’s hard to read this weekly feature and come away with the impression that judges have any sense of shame.

  5. “Woman is arrested at protest over Ferguson shooting, released without charge. Rather than returning the $30.97 she was carrying, Multnomah County, Ore. officials give her a debit card that has a monthly service fee (imposed five days after release), a fee for using certain ATMs (with incorrect info as to which machines incur fees), and a fee for requesting the balance of the card by check, among others.”

    One assumes kickbacks from the debit card company to the Multnomah County officials were involved.

    1. Kickbacks or no, this should be an easy case. There are lots of things you can do with cash that you can’t do with a debit card, so a debit card is simply not worth what the cash is worth. So, they did not give her back as much as they took.

  6. I think the Texas Court of Appeals decisions proves that some people become judges so that they can maliciously f*ck over people. The court really goes out of its way when it interprets the phrase “votes or attempts to vote in an election in which the person knows the person is not eligible to vote” as not actually meaning what its plain language says.

    Here, there was no evidence whatsoever that the defendant knew she was ineligible to vote.

    One could say that knowledge of illegality of ones actions should not be required in the general case. But here, we have SPECIFIC statutory language that says they have to KNOW they aren’t eligible. That means, OBVIOUSLY means (1) knowing their status and (2) knowing their status makes them ineligible. SPECIFIC statutory language overcomes a general background presumption.

    The Texas legislature DID NOT say that the person has to “know of a status” that makes them ineligible to vote. It said the person must KNOW that they are not eligible to vote. OBVIOUSLY, the latter condition is important, because it is much more blameworthy to vote knowing you are not eligible, than to vote knowing you have a status, but not knowing that status makes you ineligible.

    This is 5 years in prison for a non-crime. The real criminals in this case are the judges who refused to follow the plain language of the statute and the prosecutors who decided to waste taxpayer money on this case. They should all be ashamed of themselves.

    No WONDER we have an incarceration crisis in this country. Throwing people in prison for 5 years for no good reason.

    1. I want to note a further problem.

      By throwing so many people in prison who don’t belong there, the authorities are decreasing public support for the system. This will ultimately risk public safety, because the backlash they are creating may go too far.

      I wish more intelligence was used in our criminal justice system.

    2. “Here, there was no evidence whatsoever that the defendant knew she was ineligible to vote.”

      Well, not from Reason’s earlier account, or the accounts coming from her allies in the media. But I’ll note that she raised this defense in her trial, and it was specifically rejected as implausible.

      She signed right at the bottom of a clear notice stating the rule:

      “TO BE COMPLETED BY VOTER: I am a registered voter of this political subdivision and in the precinct in which I’m attempting to vote and have not already voted in this election (either in person or by mail). I am a resident of this political subdivision, have not been finally convicted of a felony or if a felon, I have completed all of my punishment including any term of incarceration, parole, supervision, period of probation, or I have been pardoned. I have not been determined by a final judgment of a court exercising probate jurisdiction to be totally mentally incapacitated or partially mentally incapacitated without the right to vote. I understand that giving false information under oath is a misdemeanor, and I understand that it is a felony of the 2nd degree to vote in an election for which I know I am not eligible.”

      She had the fact that she wasn’t on the voter roll to tell her she wasn’t a registered voter. She knew she was a felon, and she knew she was still on probation. She was on notice that she’d be committing a new felony if she signed, and she signed.

      And, critically, the offense she’d just gotten out of prison on? It was wasn’t just making a mistake on her own taxes. She was counseling others on how to commit tax fraud by signing false affidavits.

      The judge, not unreasonably, decided that the evidence indicated it was deliberate, not a mistake.

      1. Oh snap. Retortion stops a bleeding heart.

      2. You should actually read the case. The appeals court ruled that evidence that she knew she was ineligible was NOT required.

        1. He’s not responding to that part of your comment—he’s responding to the part where you said that evidence didn’t exist. You can tell, because he quoted that part of your comment at the beginning of his comment.

  7. On attempting to access the Georgia Supreme Court holding mentioned in Short Circuit, my Firefox browser connection is blocked with a message: “Why have I been blocked? This website is using a security service to protect itself from online attacks…”
    For those with a like problem, the Twitter link given does have a snippet.

    1. Strange — my Firefox opens it fine. But there’s another copy here you might try.

    2. Maybe review your browser extensions. Perhaps one of them is considered problematic by security software. Alternatively, the site might have detected AdBlock or a similar extension, and prefers to provide a security message instead of a “you will view our ads and you will like it” message.

  8. Many, many thanks for this chatty, witty digest. Oddly, I find myself looking forward to it.

Please to post comments

Challenge to L.A. Closure of Gun Stores as Part of General "Non-Essential Business" Closure


It's Brandy v. Villanueva (C.D. Cal.), just filed today by the Second Amendment Foundation, the NRA, the California Gun Rights Foundation, and the Firearms Policy Coalition.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Just heard that the LA Sheriff decided to reverse himself.

    RI has come out with an interesting twist — stopping all vehicles with a NY plate on them (on sight) and asking them where they are going. No problem if they are passing through, but a quarantine order if they are going to RI. Also going door-to-door at seasonal properties.

    NB: This would include people who have been in RI for weeks.

    RI ACLU reportedly is upset. About time….

    1. Wonder what the implications of finding something else would be — e.g. _Prouse v. Deleware_.

  2. I suppose you would have to say the same about stationery stores, office equipment stores and copy shops, in that paper, pens, typewriters or computers, and copying facilities are needed for the exercise of First Amendment rights

    1. Walmart & Target (both allowed to be open, at least in MA) sell paper, pens, and computers. I’m not sure if *anyone* sells typewriters anymore, and most folk now use their printers as a copier as well.

      So you can buy at least the basics — most grocery stores also sell paper, pens, & pencils (often at a better price).

    2. Paul: Aren’t all those things legally available by mail order, with a modest delay (less than the normal legal delay imposed by California’s waiting period laws)? That, I think, suggests that the burden imposed by the order on free speech rights are not vast, though still substantial. Not so for guns (or for abortions).

  3. Mark Levin just compared America today to East Germany — that’s going to have traction on the right….

    1. Given that the LA Mayor let slip last night on the news they were using cellphone data to spy on people’s compliance, I would say we arent far from it.

      1. That is not what he said, you bigoted, disaffected, half-educated dullard.

        1. Wow you sound triggered.

          How did he say they were using cellphone data?

          1. Give the pathetic loser a break. Poor Artie has been singing the same sad, old, angry song for years and nobody listens to him, since he went full whacko. The fact that gun sales have been at record levels for several years and violent crime keeps going down is major frustration to him/her.

            1. “since he went full whacko”

              Artie was full whacko from his first post. It was amusing at first, in a train-wreckish kind of way, but since he discovered cut and paste the past ten years have just been a serial rendition of stupidity on the black hole level.

          2. From The Atlantic, not exactly a bastion of right-wing ideology – in a phone interview with Mayor Garcetti:

            “The good news is, I’ve been tracking a lot of [cellphone and other] movement data, and Los Angeles was the county whose individuals were moving the least in all of Southern California.”

            He has been tracking cell phone data, presumably aggregated and anonymized, but we have no guarantee of that, nor has his administration made any statement to that effect so far.
            Since the Mayor’s actual words were supplanted by the journalists, we don’t know the exact phrasing he used.

            1. Furthermore, LA does have Stingray technology per the ACLU (also not known for being right-wing): . Note that the LAPD is included, so it’s entirely plausible that such data is being used in exactly the way people feared governments, at multiple levels, would.

              Tangentially, does anyone else get “Your comment is awaiting moderation” whenever a post includes more than one or two URLs?

              1. Yes, everyone. Max-one-link-per-comment is an undocumented limitation of the Reason comment system. It doesn’t matter whether the URL is typed in raw or aliased via HTML.

    2. Well, it’s going to have traction with imbeciles who listen to Levin.

      1. As opposed to imbeciles who listened to Jon Stewart?

Please to post comments


Is the CDC to Blame for the Lack of Adequate Coronavirus Testing?

Reports from USA Today and ProPublica highlight CDC missteps that set back the United States' Covid-19 response.


It is generally accepted that widespread testing will be key to successful control of Covid-19. Identifying where the virus has (and has not) spread, who is infected, and who may be immune are all important. The tracing and isolation of infected and potentially infected individuals is essential if quarantine and containment efforts are to be targeted. Yet as ProPublica reports:

The lack of testing continues to be a source of deep frustration across the country, with worried patients unable to find out whether they have the ordinary flu, the coronavirus or something else entirely. The availability of testing in regions that aren't hot spots still faces an array of bottlenecks, from shortages of cotton swabs to the capacity of the labs processing the tests.

Why isn't there more testing? And why haven't we been able to ensure testing occurs where necessary? Among other things, the Centers for Disease Control & Prevention (CDC) focused on the development of its own test and discouraged the development of alternatives by others. This turned out to be a particularly bad misstep because the CDC's test was not particularly accurate.

A new investigative report from USA Today paints an even more damning picture of a CDC that simultaneously sought to monopolize testing while deceiving state officials about its capacity, As a consequence, parallel efforts to develop and produce tests in private labs were set back, placing the United States well behind the curve of where we needed to be.

From its biggest cities to its smallest towns, America's chance to contain the coronavirus crisis came and went in the seven weeks since U.S. health officials botched the testing rollout and then misled scientists in state laboratories about this critical early failure. Federal regulators failed to recognize the spiraling disaster and were slow to relax the rules that prevented labs and major hospitals from advancing a backup.

Scientists around the country found themselves shackled as the disease spread.

"We were watching a tsunami and standing there frozen," said Dr. Debra Wadford, director of the public viral disease laboratory in California, where some of the country's earliest patients were identified.

The nation's public health pillars — the Centers for Disease Control and Prevention and the Food and Drug Administration — shirked their responsibility to protect Americans in an emergency like this new coronavirus, USA TODAY found in interviews with dozens of scientists, public health experts and community leaders, as well as email communications between laboratories and hospitals across the country.

The result was a cascading series of failures now costing lives.

As they say, read the whole thing.

The reality is that if it were not for some of the actions taken by the CDC, and the Food and Drug Administration, the United States would have had a greater number of more reliable coronavirus tests available for use far more quickly. We might have even been ahead of the curve.

Another report from ProPublica further supplements the picture of a CDC that fumbled some of its key responsibilities, revealing some of the problems of trying to quarterback the nation's entire response from within a few expert offices.

These stories highlight that scientific and technical expertise does not necessarily translate into administrative expertise. Centralized bureaucratic structures face inherent limitations that make them brittle and magnify the costs of failure. No amount of medical expertise can overcome the Hayekian knowledge problem, and the more centralized the government response, the greater the downside risk if someone makes a mistake, such as by underestimating a threat or distributing a botched test.

Institutions such as the CDC and FDA are important, but they also have their limitations. One of the lessons from the Covid-19 outbreak thus far is that giving them to much power and responsibility can have serious negative consequences.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. If it turns out, as I believe, that this quarantine is mostly for nothing because Corona is less dangerous than the annual flu, then the government will and should lose a lot of credibility on this issue and will have a much harder time getting people to comply with the next quarantine order, whenever that may come. They’ve cried wolf.

    1. The interesting question will be the voter backlash — I could see a combination of “throw the bums out” and a Populist wave coming.

      The other thing that is going to happen is a Fourth Great Awakening — the third occurred after WW-II — and we’re not just going to return to our Judeo/Christian roots but religion will have a much greater political role than it does now. (Never forget that the Civil Rights movement came out of the churches, and was lead by Ministers such as the Rev. Martin Luther King, Jr.)

    2. I agree with this. Nobody wants to say it right now but we may find out such a comprehensive lockdown is one of the less effective measures we could have taken. Especially if it turns out everybody and their mother has this virus and just doesn’t know it yet.

    3. “Corona is less dangerous than the annual flu”

      Do right-wing blogs generate overconfident, uninformed dullards, or merely attract them?

      1. Well, it did attract you so… I guess that’s evidence for the latter.

    4. jdgalt1…I’d like to answer you. Becuase you have made a statement that is just wrong.

      The Wuhan coronavirus is less dangerous than the annual flu
      This statement is false. The Wuhan coronoavirus has a higher mortality rate, and transmissability than the flu.

      The fact is, we are now just developing a large enough dataset to make informed, data driven decisions on mitigation and containment. As I write, we have conducted more than 700K tests in record time. Nobody can even approach the speed and rapidity that we deployed testing.

      In the absence of really solid data, what exactly do you propose? Yeah, that is what I thought: Nothing helpful.

      Maybe you should turn on some synapses and consider the following: It is not just about the mortality rate, numbnuts. You might want to think of the percentage of patients who require hospitalization, extensive care (weeks on a ventilator) who then go on to recover partly. Have you considered the cost of that? Nah, did not think so.

      Get your head out of your derriere and use your brain. This Wuhan coronavirus is a new pathogen for which we have no known efficacious treatment, and very high transmissability. Implementing a temporary period of self-isolation is a smart move until we get data to make good decisions.

      1. Take a course in quantitative research methods and you will understand the issue — without testing everyone (or a statistically valid sample of everyone), we have NO IDEA of how lethal this virus is.

        Absolutely no idea.

        And we don’t even know how many actually died from it — and how many people (who had it) actually died from something else. Like the flu — as the actual cause of death is liquid in the lungs.

        And as something like 3/4 of the initial tests came back negative — when they were ONLY testing people whom a qualified MD thought had it, it shows how much other stuff there is out there. It’s like if a victim is both shot & stabbed — a bullet in the arm and a severed aorta means that the stabbing (not the shooting) killed him.

        So all we have is the ratio between those tested and those who died — that’s all we know.

        Hence the Flu becomes relevant — 3% of those who are tested for the flu (and found to have it) die from it. However the death rate from the flu is 0.1%. Note the difference here — most of the people who have the flu are never tested, while the sickest people inevitably are.

        If the same thing holds true here, and it is a reasonable assumption, that means a 2% death rate of those tested will mean an actual death rate of less than 0.1%.

        1. “Absolutely no idea.”

          In your view, are the scenes from hospitals in Italy, and now NY, typical for a run of the mill flu season?

          (it’s a fair, but minor, point that we don’t know if it’s more dangerous than a typical flu year because the virus is more deadly once infected, or just that it’s more transmissible. But some combination of those has resulted in gurneys crowding the hallways. Those aren’t all hypochondriacs reacting to a media oversell)

  2. Yeah, maybe. But we don’t know yet how important it is that Trump appointed a CDC director without any experience managing a public health agency. (

    1. Do you honestly think that any CDC director could have turned around the CDC? Betsy DeVos has been ED Secretary for at least three years now, and have the excesses of Higher Education (often discussed here) been abated?

      What’s not mentioned about Andrew Jackson’s “Spoils System” is that in cleaning out the entrenched bureaucracy and replacing it with his people, he created a Federal bureaucracy that would actually implement his policies. Likewise when FDR and LBJ massively increased the number of governmental employees, the entrenched bureaucracy was silenced by becoming greatly outnumbered.

      As both Reagan & Trump have a philosophical objection to further expanding the size of the government, and Civil Service laws prevent the removal of those who have “retired in place”, there really isn’t that much that can be done.

    2. I think the CDC would be just as incompetent as its always been no matter what president they were under, who was in ‘charge’, and how much money they’ve been given. The only difference is since Trump is in change he’s getting blamed for it while the bulk of the criticism would be aimed at the CDC itself if a Dem was president now.

      1. Amen to that.

      2. It’s only been 3 years since Obama. But what the heck; go ahead and blame this whole debacle on him. There’s a decent chance that 42% of the country is idiotic enough to believe it. Can’t hurt to try (non-idiots are going overwhelmingly for the Dem. candidate in November, regardless of what Trump does, anyway.) Hopefully, it will move quickly from the presidential lecture to Hannity, and then quickly on to Rush. We need full saturation, in order to maximize its impact.

        1. lectern, not lecture.

      3. Amos….Your premise is wrong = …the CDC would be just as incompetent as its always been …

        Look, is there really a way to prepare for what we have happening? The answer is No. I don’t ‘blame’ any POTUS. I mean, if we are going to do the blame game, why not blame every POTUS since 1918 for failing to prepare for a repeat. It is stupid and unproductive.

        Nor do I think the CDC is incompetent. Quite the opposite. The CDC knew very early the Wuhan coronavirus was a problem. It is why they specifically asked to join the WHO delegation to China in early January. China specifically prohibited them. That does not make the CDC incompetent; that action makes China culpable. There will be a reassessment of our relationship with China when this is over. I don’t think they will like the results very much.

        Next, considering the CDC system was a surveillance type testing system, the fact that the CDC has been able to switch over to a mass testing system in less than a month is nothing short of miraculous. Just think about the logistics involved in doing that. No other country in the world can come close to pulling that off. None. Just name one. I’ll wait.

        There is plenty to bash the federal government, the CDC, and POTUS Trump about – the response to the Wuhan coronavirus ain’t one.

        1. I’m wondering if the reason China prohibited them was that the ChiComs knew that the CDC (and/or FBI) are pretty good at getting genetic fingerprints of things and using that to trace them to their source. Case in point, while the FBI accused the wrong man (and had to write a formal letter of apology to him), they did trace back the Anthrax in 2001 — and that was 19 years ago.

          So if this did come out of the Wuhan Institute of Virology, or if the ChiComs think it might have, the last thing is they would want is someone able to determine that.

          1. Jesus, stop with this dime store novel speculative claptrap.

          2. Nobody knows, Dr. Ed. There is plenty of time afterward to sort all of that out. It is a certainty our relationship with China will be reassessed. China’s lying and obfuscation about the Wuhan coronavirus has lead to the deaths of Americans. That will not go unaddressed.

    3. Did you read the article? He was “controversial” for other reasons, not his qualifications.

      “A leading virologist, Redfield has spent more than 30 years researching HIV and other infectious diseases. He served in the U.S. Army Medical Corps for 20 years and later cofounded the Institute of Human Virology at the University of Maryland School of Medicine, where he now acts as associate director. He has overseen a clinical program that treats more than 5,000 patients in the Baltimore-Washington area, and has experience treating people in sub-Saharan Africa.”

      1. AIDs is a political disease — it’s received far more funding and attention than would be appropriate if resources were apportioned on the basis of its *virulence*. You can’t get AIDS from a toilet seat — unlike AIDS, the Wuhan virus can live on that plastic toilet seat for 72 hours….

        In an ideal world, you’d want your CDC director to be an influenza expert because that is the greatest epidemiological risk, but it’s politically incorrect to say that we’ve known how to prevent the spread of AIDS since at least 1986…

  3. It pinpoints once again the difference between government and individuals: government never goes out of business. People are just as incompetent in business as in government; neither government nor business paychecks turn ordinary people into magic competent wise wizards with all the world’s knowledge at their fingerprints. But (a) multiple businesses can simultaneously work on the same goal independently, (b) businesses which screw up go out of business, freeing up their workers and other resources for better, more competent use. Government failures are covered up or doubled down on, but seldom recognized for what they are, and when they are embarrassing, they are used an excuse for blocking private enterprise trying their hand at it.

  4. They were too busy trying to eliminate vaping. And private gun ownership.

    1. You’re definitely right on CDC resources being wasted on attempts to eliminate private gun ownership — last December (while the Wuhan Flu was starting to spread), Congress appropriated $25M for them to study gun violence. Not to control diseases such as the Wuhan Flu…

      All appropriations start in the House of Representatives so the blame for this goes right back to Nancy Pelosi and her Progressive majority. Not to mention the mid-level (civil-service protected) bureaucrats at places like the CDC.

      1. AIDS is and was scary of hell for lots of reasons beyond the political.

        All appropriations start in the House of Representatives so the blame for this goes right back to Nancy Pelosi and her Progressive majority

        This is some major-league buck passing. FFS.

        1. “This is some major-league buck passing”

          In 2003 or so the US created a national stockpile of a little over 100 million N95 masks. That was smart; pandemics of aerosol transmitted diseases are foreseeable in the same sense that earthquakes in California are foreseeable.

          Most of that stockpile (100M) masks from that stockpile were distributed in IIRC the flu epidemic of 2009, never replenished.

          The R’s blame Obama. The D’s blame Trump. But in the interval between 2009 and 2020 both parties have had control of the White House and congress. And nothing was stopping states or even towns from establishing their own stockpiles.

          When I see people pointing fingers of blame, I guess my question is what you did to solve the problem. If you weren’t advocating for pandemic prepping before 2020, you can’t really blame other people for also ignoring the obvious possibility.

  5. “These stories highlight that scientific and technical expertise does not necessarily translate into administrative expertise.” IMO, that’s the crux of the issue Mr. Adler.

    I’ve read elsewhere that CDC’s sterling reputation comes from development of vaccines. That is where doctors, scientists, and engineers can best contribute. I think that CDC being scientifically dominated rather than bureaucratically dominated is its main weakness.

    It is common in recent times to criticize governments for not “following the science”. But in this case, science was not the critical asset. CDC needed clerks to track and organize the messages coming in from outside. CDC needed project managers to envision rapid scale-up of testing.

    What do clerks and project managers do when there’s no pandemic needing their skills? They make trouble.

    In my own field (power), I see public service commissions that regulate utilities staffed with a ratio of 400 lawyers per 1 engineer. Because of that, they are extremely weak in responding to certain needs. IMO, that’s analogous to CDC’s problem.

    1. Re: power industry … I have heard that one of the reasons PG&E in California has such shoddy and old equipment is because the installation of roof solar panels far exceeded expectations … and budgets; because the PUC and/or legislature require PG&E to pay top dollar for excess power fed back in from solar panels, PG&E did not budget enough to pay for it all, and the PUC, reluctant to raise rates to cover the shortfall, told PG&E to cut elsewhere instead.

      It sure sounds plausible to me. I have heard that the PUC is where termed-out legislators go to finish their careers, and it sure can’t be the most exciting way to satisfy political egos.

      Any idea if it is true or not?

      1. Re Solar Power: One thing a lot of people forget to ask is what happens when the sun stops shining (e.g. a thunderstorm comes through). You have to have additional sources of power in reserve to pick up the load, or you have to shed the load — i.e. rotating blackouts.

        You can’t stockpile electricity in relevant quantities so the utility has to either have its own generating capacity waiting in reserve or be able to purchase it from someone else who has a surplus — and do this almost instantly. So solar (and wind) doesn’t always reduce CO2 as much as people think.

        1. One thing a lot of people forget to ask is what happens when the sun stops shining (e.g. a thunderstorm comes through).

          Oh wow. I bet hardly anybody ever thought of that before.

    2. ” I see public service commissions that regulate utilities staffed with a ratio of 400 lawyers per 1 engineer.”

      And zero people who have actually gone out in the snow to help replace a pole that’s come down….

      I once had to explain to a bureaucrat that steam pipes operate at a temperature between 300 and 600 degrees (F) and that they need time to cool down before guys can work on them. She’d never even thought about that….

  6. FDA and CDC both failed in a predictable (and predicted) test of their core responsibility to protect public health in a disease outbreak. Trump couldn’t do better to demonstrate leadership in this matter than by demanding the resignation of the directors of these two agencies, and in the case of CDC especially, directing it to terminate any of its activities other than the control of and response to infectious diseases. No more diluting its focus and resources on matters like gun control and workplace safety. Where is the accountability for this immense failure?

    1. Yes, but you fire the coach on Monday morning, not in the middle of the game,

      Not for nothing has Pence been put in charge of this — Pence who fired NSA Michael Flynn. And it’s not the Directors who need to be fired, or just the directors — its the Deputy Directors and Division Leaders that are responsible here. They need to go, and most of them are going to be protected by Civil Service.

      And as to Trump, whom I’m sure that a certain faction would love to do, wouldn’t he have been able to do more last winter had he not been distracted by the Impeachment charade? The problems in Wuhan started last fall, while Nancy Pelosi was doing her thing — which she then delayed for six weeks — and it wasn’t until Februrary 5th that Trump’s people were able to start dealing with other things.

      And then while far more Constitutional than what several Governors are doing, Trump’s initial travel ban which DID help was attacked in a way I don’t see the media attacking the excesses of Democratic Governors.

      1. The coach who should be fired here is Trump.

        I do not expect disaffected anti-government cranks — especially those who love Trump’s bigoted, vainglorious, vulgar, mean-spirited, partisan ways — to recognize this.

        I am confident Prof. Alder understands this.

        1. The coach who should be fired here is Trump.

          What, exactly, would you have personally done differently had *you* been President?

          And then would you have been able to do it? (I doubt it.)

          Remember you can’t fire people, you can only spend the money that Nancy Pelosi is willing to give you, and tenured bureaucrats are almost as independent as tenured professors — they are going to do whatever they want to, regardless of what you tell them.

          At least as of now, you are still free to vote for whomever you wish this fall, and I encourage you to do so, but what powers would you have liked to see Trump assume — and remember that we also don’t want an all-powerful dictator…

          1. A reasonable list for starters:

            1) Refrain from circulating falsehoods, misleading statements, self-serving exaggerations, and the like, especially those that cultivate public resistance to informed, professional opinion. Instead, use the public trust and power of office to promote sound judgment and prudent conduct among citizens. Perhaps even withhold childish whining, silly boasts, and partisan polemics for at least a brief period.

            2) Marshal federal resources earlier, resisting any urge to delay and diminish federal action as part of a ‘don’t worry, be happy’ campaign. In particular, promote prompt production of important equipment, medications, and tests.

            3) Develop a federal response that does not rely on individualized, scattershot efforts by hospital administrators, mayors, governors, senators, non-profit leaders, and the like to scrounge and compete for scarce, scattered tangible goods.

            4) Avoid any impression that other elected officials or citizens are to be rewarded (Florida) or punished (New York) based on the degree to which they or their representatives flatter a president or based on political affiliation.

            5) Avoid suppressing science and scientists; for example, refrain from dismantling pandemic office, alienating scientists in public offices, installing unqualified persons (such as industry mouthpieces) to oversee and control scientists, etc.

            Much of this is simple leadership, selflessness, and decency, although some of it involves respect for science, expertise, credentials, and the like.

            1. How would any of that prevented the CDC’s screwup on testing?

              It well might have created a panic that would have killed people (car crashes, etc) but which item would have addressed the mid-level incompetence at the CDC?

              And your charge of political favoritism is both serious and unfounded — I have no doubt that the anti-Trump media would be broadcasting any of this on an hourly basis were it true.

              1. The CDC is a federal government agency, part of the executive branch.

                Where, in your judgment, does that buck stop during the Trump administration?

                (Spoiler: Obama, RINOs, the Clintons, the “elites,” people with advanced degrees, residents of successful cities, Obama again, mainstream journalists, socialists, transgendered Americans, Clintons again, blacks, CNN, Muslims, Planned Parenthood, agnostics, Justice Ginsburg, scientists, homosexuals, Obama, mainstream academics, atheists, the people who confected that birth certificate, leftists, arugula consumers, and Obama.)

                1. Well, let’s start with Obama not replenishing the stockpile in 2009 after using much of it for Swine Flu. Trump was a TV personality at the time…

                  Obama is responsible for this.

                  1. If there isn’t a drinking game on this website (chug when you hear someone blame Obama for something that happened 3 years after he left office), there sure should be.

                    1. No small number of Obama’s appointees are still serving in the Trump Administration because the Democrats have held up the nomination process. I suspect that you’d find that some of the mid-level CDC appointees are still Obama holdovers.

                      So yes, we blame Obama….

                  2. How is Obama responsible for the decision to choose Redfield, or for Redfield’s conduct in office?

                    How is Obama responsible for failure to replenish the stockpile since he left office?

                    Keep trying to defend Trump on this, clingers. See you in November. Then in January.

            2. Lists of airy platitudes, mostly expressed in the negative, are cheap. What would you have done? For bonus points, how would you have done it? Please be specific. I’ll wait.

              1. I would not have engaged in self-serving, ignorant, dangerous lies, you half-educated bigot.

                Enjoy awaiting your replacement. By your betters.

      2. It’s amazing that you people can come up with excuses such as “Trump could’ve done more about the virus he claimed was nothing to worry about for months, if only he hadn’t been busy refusing to engage in his Impeachment trial in any way, shape or form.”

        Someone who is capable of only focusing on one issue at a time, particularly an issue which they refuse to participate in, has no business being President.

        Your conjecture is bullshit.

        1. So you’re saying he should have been able to handle two tasks at once.

          How many things do you think a President is in charge of, just those two?

          1. A normal president, or this very stable genius?

          2. Effect of the Impeachment on the President and his ability to focus on other issues:
            Trump: “I’m too cowardly to answer questions. And I know that John Bolton’s testimony, Pence’s testimony, Rudy’s testimony, etc, will bring me down. My orders are: Block as much testimony as possible. Hide the truth from Congress and from the American people.”

            There. Done. That was about a 45-second drain on Trump’s time and attention. The hours he spent watching an outcome-never-in-doubt impeachment and subsequent “trial” was his choice on how to waste his time. But both liberals and conservatives do wonder: “What if Trump had taken the 45 hours of wasted Tweeting and had spent 3 of those hours back in Dec and Jan talking with pandemic experts? What would he have done differently?”

            (Impossible to know, of course…we’d need an alternate universe where Trump is still Trump, but that version of Trump happened to believe in science and in the value of [even unpleasant] data.)

  7. We will all die if the people in government takeover all our healthcare and ban our healthcare freedom.

    1. ban our healthcare freedom

      Helluva thing to talk about at this particular juncture.

    2. I think we will all die if govt takes over and infringes any of our freedoms.

      1. I think we will all die sooner or later no matter what the government does.

        1. Replacement seems to be the sole reasonable course with respect to inhabitants of the clingerverse.

  8. “Institutions such as the CDC and FDA are important, but they also have their limitations.”

    Assumes facts not in evidence.

    1. I’d argue the converse…

  9. About three levels deep in the entire FDA and CDC bureaucracies should be impeached for their malfeasance.
    There’s no way that in an emergency situation they should be requiring 6 months of red tape for producing a mask, or a year’s worth of red tape for a ventilator.
    And there’s no way they should have left the national inventory of masks un-stocked for all the years since 2009, in disregard of urgent recommendations from the experts.
    And there’s no way they should be so unprepared for a SARS-like pandemic, given the number of times that warnings experts have given about the likelihood/danger of Chinese markets leading to such outcomes (even by journals such as _Smithsonian_.
    High crimes and misdemeanors…

    1. More nonfeasance, and Obama was warned about the consequences of not replenishing the stockpile….

      OBAMA used it and didn’t replace it. OBAMA….

      1. Why do you keep bringing this up? It has absolutely nothing to do with what President Trump did or didn’t do. Stop misdirecting and defend Trump’s actions and inactions on their own terms. For once.

    2. Agree about the bureaucracies. And add to the list everyone in the administration from the very top to about three levels deep in every cabinet. Which means we’re left with Jared running the show. I feel better already.

    3. That would still leave all the worst problems in place. They need to be cleaned out from the bottom up.

      1. pour encourager les autres…

  10. Lessons long forgotten, or maybe never learned?
    “…in the long run the aggregate of decisions of individual businessmen, exercising individual judgment in a free economy, even if often mistaken, is less likely to do harm than the centralized decisions of a government; and certainly the harm is likely to be counteracted faster.” — — John Cowperthwaite, Hong Kong financial secretary, 1961-1971

  11. I am enjoying those whose lesson from this is that the free market is clearly the way to handle pandemics.

    Hard to imagine a worse place for a market. A deadly free rider problem; lives being on the line; coordination and not competition needed; loads of miss-information.

    1. “Miss-information” being the kind they have in Mississippi?

      1. Erm. Among other things.

    2. “free market is clearly the way to handle pandemics”

      We don’t have a “free market” in health care. Its a highly regulated industry, both as to providers and funding. Among many examples, hospitals need “certifcates of need” to open at all or to add beds.

      Our mixed private/public system is working pretty well right now. Even in NYC.

      1. Our mixed private/public system is working pretty well right now. Even in NYC.

        We don’t have the testing to use epidemiologicaly; we can only use it diagnostically so we have zero power to monitor and mitigate or prevent anything.
        Being reactive doesn’t seem great.

    3. Sarcastr0….I actually see the response of the free market here as nothing short of miraculous. Lets take testing, since you are slamming it – unfairly IMO.

      We went from a ‘standing start’ of having a surveillance type testing system (which worked, BTW) and converted to a mass testing system in under a month. And 700K tests conducted in under two weeks, with 100K day capacity (and growing). That is all because of private industry. I challenge you to name a country that has done as much, so quickly and efficiently.

      America has called on our American businesses to help respond to the Wuhan coronavirus. They have answered in a magnificent way, with few exceptions (GM is a notable exception). I am personally grateful to American businesses who answered our calls in a time of national emergency.

      1. Commenter, I agree that where it’s been properly utilized (drug innovation, manufacturing capacity, etc) the market has been as miraculous as it’s always been – which is indeed pretty badass.

        The issue I’m taking is those who are saying the CDC screwup (here I disagree with you – I think there is plenty of blame to go around, including China and the CDC and Trump with remainder to spare) proves that the government has failed and the market needs to take over. That’s ridiculous – marshaling the resources the market has effectively supplied us with is a center-mass governmental action).

        If it looked like I was generally saying ‘markets bad’ that was not what I meant to say.

        I would take a bit of issue with your invocation of the ‘standing start to 700K tests’ as impressive, since you should look at such capacity on a per-capita basis, not as a bare number. Number of people determines your demand signal, as well as your productivity baseline. By that measure, we’re actually pretty bas.

        And the standing start…well, where was the market anticipating demand? (Unfair, to you – that’s not your thesis. But it is the thesis of many of the more chuckleheaded here)

        1. Sarcastr0, in my ‘heart of hearts’ I do not see a CDC screw-up here at all. I just don’t. Here is why. The surveillance testing CDC had in place absolutely worked; and worked exactly as intended. Our need changed literally overnight from a surveillance testing system to a mass population testing system. This was achieved in less than two weeks; I would call that miraculous. That transformation isn’t a failure of the CDC, it is totally the opposite – an incredible, stunning success. The CDC literally co-ordinated this transformation effort on the fly across thousands of businesses. From the time I wrote my post this morning, we blew through another 125K of tests. Any way you want to look at it, nobody has come even remotely close to us in terms of testing in either speed, percentage of population tested, or the rapidity of innovation.

          This month of March has been the CDCs finest hour. They have accomplished things nobody could ever have imagined as even possible. I am no fan of big government, but the CDC has earned my undying admiration.

          They have been, and are very unfairly criticized.

          1. 1. I don’t think our need changed overnight. – we had warning in January.

            2. The CDC absolutely bobbled the test – their original tests were bad, providing both false positives and false negatives, and then they bobbled the communication that the original test was bad. That lead to not only bad treatment decisions but also a loss of at least a week of data.

            3. Our use of tests is still hobbled to reactive triage levels, not proactive epidemiological levels as South Korea managed.

            I don’t deny there may have been herculean efforts by the CDC, but there is some great evidence that there was a policy failure as well.
            Those blaming the President or top CDC officials are taking the easy way out – we need to study what went wrong and why.

            There’s some serious sociology going on with the mania for blame right now (see above the post about suing hospitals, the rabid speculation about China, this post, even my side blaming Trump). I suspect that will fade as things get real.

        2. “Number of people determines your demand signal, as well as your productivity baseline.”

          If the part after the comma is saying that since the US has a population 10X (or whatever the number is) that of S. Korea, then if they can produce 1M test kits in a month, the US should be able to produce 10M isn’t quite right.

          As Fred Brooks famously said, “the bearing of a child takes 9 months no matter how many women are assigned to the task”. Producing kits take a certain amount of design, testing, and so on, and that time is independent of how many you eventually produce.

          (This is not to say the CDC/FDA can’t be fairly criticized for e.g. shutting down people repurposing lab equipment to do ad hoc testing; the exigency of the situation , IMHO, argues that letting university labs do ad hoc testing if they think they can isn’t the moral equivalent of allowing prescription of thalidomide w/o adequate testing. And we, as a country, have unfortunately developed a culture where you never get in trouble for following the rules, even when the rules are stupid.)

          1. That’s a fair point – that the relationship between population and productivity isn’t a 1-1 proportionality.
            And this is getting deep enough into economics I could be wrong, but it would seem to me that there is enough of a relationship that looking just at the bare number of tests produced is a poor metric of quality of effort.

            As a digression, as a bureaucrat, what I find re: rules following is different from the ‘always safe following the rules,’ but not necessarily better.
            Rules that are set down as requirements are rarely followed because they’re all well-meaning but impractical; you need to know the rule, and then the real way things get done. Rather reminds me of law school versus actual practice.

      2. I may take issue with the proportion of blame you heap on China, but your tone has been better than most here, including myself. And I find the thoughtful engagement you allow and provide a balm in these anxious times.

        Appreciate you!

        1. We Americans are all in this together, Sarcastr0. It really is that simple.

          1. Virus doesn’t see nations. In a bit, it’ll be all humans in this together.

  12. “Another report from ProPublica further supplements the picture of a CDC that fumbled some of its key responsibilities”

    They’ve been too busy with research into violence, obesity, smoking, transgenerism…

    1. And ProPublica leans left….

      1. “Leans”?

        They are fully bent over.

  13. Well you already have governors in Michigan and Nevada, for political reasons, telling doctors what medicine they can prescribe to their patients. Think how much easier that wil be when all the doctors work for the government.

    I have to give Cuomo some credit here, he is acting like a governer rather than just a politician here, unlike a lot of his colleagues, and he’s not going to ban a medication that could work just because Trump suggested it.

  14. “Centralized bureaucratic structures face inherent limitations…”

    In part, the over-reliance on the CDC is due to the defunding of state public health systems over the past 10 years. Those are the people who needed to be on the ground doing the contact tracing and quarantine orders (just like they should have been tracing down cases of gonorrhea and syphilis over the past 10 years).

  15. Say the organic statute of the Department of Administrative Affairs sets out certain areas in which Congress clearly intends for the Feds to occupy the field of administrative regulation of things. The safety of salted wheat crackers and the market for Task-it adhesive notes are specifically singled out. In subsequent decades, a finely reticulated regulatory scheme emerges. Then, crisis–and Congress passes the Triscuit and Task-it Recovery Act of 2097, in which the entire Federal Government swings into action, and of necessity the states are involved to an enormous degree. In the aftermath, states step in to enact massive regulations on the electric-baked salty biscuit market. The manufacturer challenges on grounds of preemption, but the states say that the subsequent Congress, in deploying a massive response to the specific situation that the organic act contemplated, constituted an implied repeal of both the implied and express preemption provisions of the Act.

    Quid juris?

    Mr. D.

    1. I’m thinking the issue will be moot in the massive populist backlash this November.

      1. Like the one that swept Harding and Coolidge into power after 1918?

  16. See too, James C. Scott, Seeing Like A State on the myriad problems with centralized decision making.

  17. Usatoday and propublica are not great sources for this. Our pathetic media institutions went after the cdc very early in all this, as yet another way to bash the Trump administration. Are we really going to believe them now after the appalling propaganda we have experienced for the last few decades? Does anyone doubt that is a dem was potus we would be hearing about how much better the cdc has performed compared to foreign efforts?

    I will wait to pass judgement until a year from now, when it is no longer an election year and we can see clear scientific assessments of the history. When we can learn how accurate was the WHO testing protocol really, how much did testing matter, and how was the organization of the relative national responses.

    1. Actually, i take back what i said about usatoday’s article. Its beyond “not great”, it is an outright propaganda hit-piece on the trump administration.
      Notice how they take a critique of the cec/testing, and then immediately quote something Trump said, regardless of relevance? Pure propaganda.

Please to post comments

Today in Supreme Court History

Today in Supreme Court History: March 27, 1996


3/27/1996: Seminole Tribe of Florida v. Florida decided.

Texas Sued Over Coronavirus-Related Restrictions on Abortions


Here's the motion for a preliminary injunction; here's the heart of the argument (I hope to also post key parts of the state's brief, when that is filed):

Here, in terms of the burdens, the Attorney General's current enforcement threat operates as a ban, whether for all abortions or for all abortions after ten weeks. The Executive Order is in effect for at least thirty days, and in fact could remain in effect for months, which would push many abortion patients past the legal limit for an abortion in Texas. Moreover, even if some patients affected by the order are able to obtain an abortion if the order is lifted sooner than anticipated, they will still suffer increased risks to their health by the delay in access to abortion care. Thus, the Executive Order overwhelmingly harms individuals seeking an abortion.

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  1. How far can the state go in expropriating private property for the public good in an emergency? Forgetting Kermit Gosnell’s “House of Horrors” and presuming that the abortion clinic meets basic medical standards for a medical facility — in a dire situation — can the state seize it for temporary housing of Wuhan Flu patients?

    In other words, even though their outpatient clinic would never be considered a “hospital” under normal circumstances, can a state expand the definition to include it — as long as the state does likewise with similar facilities (e.g. hair transplant clinics).

    I think the larger issue of the rights being nullified by fiat in this hysteria is going to go to SCOTUS in a case quite similar to _West VA v. Barnette_ (flag salute), which I don’t think would have been decided the way it was if it wasn’t clear that WW-II was almost over and that we were going to win it.

    And what I don’t see either the gun or abortion people mentioning is what is probably their strongest argument — that denying the legal route creates the necessity defense for those who would act outside the law.

    1. I think that if a state picked abortion clinics to deal with victims of the Trump virus, it would not pass constitutional muster. But I suppose that if the Trump virus ends up being far more deadly than expected, and if a state had to seize control over each and every medical treatment facility in that state, then it would probably be allowed. (Compelling govt interest, least restrictive, no alternatives, etc.)

      [Fun fact: The Spanish Flu’s name had nothing to do with where or how that virus started. For wartime morale reasons, media were censored from truthfully reporting about the flu’s impact on the U.S., England, France, etc.. But since Spain was neutral in WWI, papers were free to report on the pandemic’s deadly effects in that country. So who knows . . . this may end up being known as the NYC Flu.] (“The Big Apple Flu”…Dibs on trademark!!!)

      1. So, do the ChiComs pay well, or are you renaming the Wuhan virus pro bono?

        1. The fact that neither of you can say “coronavirus” is just sad.

          1. Coronavirus is an incorrect term to refer specifically to SARS-Cov2, because there are a lot of different coronaviruses, most of them are quite harmless. “Wuhan virus” is a better term because it’s conventional and specific.

            1. When I want to get the bigoted, half-educated, stale-thinking perspective, the Volokh Conspiracy has become my go-to destination.

              As planned, I sense.

            2. (1) Common usage for weeks was Coronavirus and Covid-19. These terms were ubiquitous in the media and normal discussion.

              (2) They didn’t have to be precise scientific terms for common use.

              (3) The PC Language Police aren’t the ones attempting to change common usage, Trump and the Right are.

              (4) The reasons for their effort are base & ugly, pandering & childish, xenophobic & jingoistic. Painfully sleazy. Is such juvenile behavior really necessary in the middle of a world-wide catastrophe? On the Right, apparently so…..

              1. > (1) Common usage for weeks was Coronavirus and Covid-19.
                > These terms were ubiquitous in the media and normal
                > discussion.
                Coronavirus is not specific and Covid-19 is a wrong term to describe the virus

                > (2) They didn’t have to be precise scientific terms for common
                > use.
                That’s why Wuhan virus makes sense, it also follows a convention

                >(3) The PC Language Police aren’t the ones attempting to change >common usage, Trump and the Right are.
                Spanish flu, Ebola, Lyme disease were invented by Trump?

                1. (1) Common usage for the virus and associated disease is Coronavirus and Covid-19. Rhetorical deflection and side-show weaseling doesn’t change that fact a bit.

                  (2) I’m curious how far you’ll to to excuse this latest brat-like behavior from our president : Are you claiming Trump suddenly decided this should be named “China Virus” out of concern it could be confused with other coronavirus strains?!?

                  There are people who say this whole clownish snit is because
                  of some Chinese sources peddling the lie the virus originated from the U.S. Of course that followed people like Senator Tom Cotton, Steve Bannon, and Medal-of-Freedom winner Rush Limbaugh peddling the lie Coronavirus was commie biological research. Tell me, deg_ree, wouldn’t you like to be one of the adults in the room while everyone on earth is suffering?

                  Why not give it a shot? You might find being an adult is a pleasurable experience…..

            3. And we won’t even get into the genetic fingerprinting that likely has already been done. It’s already known that the Wuhan Institute for Virology was working on SARS-Cov1 (they were advertising for help last fall) and that SARS-Cov2 is fairly close to it.

              Even if they weren’t doing BioWeapons work, it’s entirely possible that the WIV was working on a vaccine for SARS-Cov1 (which broke out in China back in 2002) — and it got loose from their Level 4 lab. It’s even possible that someone sold the lab animals for food — yes, China *is* that corrupt.

              Donald Trump is many things, but stupid is not one of them, and I doubt he’d be quietly saying that China was responsible for this if he didn’t know more than is publicly known right now.

              1. It’s also possible the virus was brought by lush (and green) alien women from Saturn’s moon Enceladus, during one of their secret trips to our unsuspecting planet. Yeah; I could see how it might be fun to believe that – so I guess I will. After all, believing is pretty damn easy with a lax mind and proper motivation. (And Trump did warn us about illegal aliens)

              2. It came from bats, now affects humans; therefore, call it “the Batman virus”.

                1. That would probably lead to the Robin Virus. I never did trust those darn birds – always trying to get the jump on everyone else come springtime.

      2. The virus came from bats and transitioned to become infectious to humans. It should, obviously, be called the Batman virus.

    2. The state can’t do anything in response to Wuhan Flu, because that’s a spin term, not an illness.

      In response to the deadly pandemic coronavirus, no, it isn’t enough to “treat abortion clinics equally”. The government would need to show that there were no other clinics that it could seize to do the same job.

      1. “The government would need to show that there were no other clinics that it could seize to do the same job.”

        I don’t read the _Roe_ decision as giving abortion a preference over other medical procedures, merely placing it on an equal footing with them. Notwithstanding that, how is the government supposed to know how many clinics it will need?

        If one goes true “Chicken Little” here, if the government is husbanding ALL the resources it can find, then your point is moot as the government’s argument is that everything won’t be enough.

        1. Of course abortion gets a preference. Other procedures aren’t constitutional rights.

          1. I’m sorry, what? “Other procedures aren’t constitutional rights”?

            We really need to review the case law here, and the arguments made. Let’s be pretty specific here. The word “abortion” is not found in the Constitution at all. Instead, Roe v Wade found that women have a “right to privacy” via the 14th amendment (already a stretch, but let’s roll with it) and that that “right to privacy” included a woman’s choice to have or not have an abortion.

            Now, what you are somehow arguing is that a woman’s choice to have ANY OTHER ELECTIVE PROCEDURE besides an abortion somehow doesn’t fall under her right to privacy, but ONLY the choice to have an abortion falls under that right.

            Which is absurd.

            For example, a woman has the right to choose to or not to choose to undergo in vitro fertilization. But according to you, that’s not a constitutional right, and that wouldn’t fall under her right to privacy, so it could be banned. ONLY abortion falls under this right to privacy.

            1. Ask your armchair to explain our legal system to you.

            2. You really need to re-litigate something everyone has already been over, even in Supreme Court caselaw?

              The rhetoric on abortion is always either empty fallacies like this or empty blood and guts righteousness.

              1. The courts have never ruled that ONLY abortion is subject to the privacy “penumbra.”

    3. Could you all educate us on what the phrase “Wuhan Flu” means “Dr.” Ed – because I don’t see that term referenced by anyone following the current situation.

      1. You may also know it as the Kung Flu or Boomer Remover.

    4. They wouldn’t need an emergency to seize the clinic for the public use. Once you establish the seizure of the clinic is for the public use the only requirement is just compensation. Now in a non emergency situation the clinic could argue and likely prevail on the grounds that the takings is not for the public use but really for the removal of the clinic unless the government shows it is part of a larger redevelopment scheme. The emergency would pretty much seal the public use argument.

  2. Do you think these liberal women can satisfy their bloodlust on some puppies or kittens while this whole ‘rona thing is going on instead?

    1. Do you think these conservative theocrats can satisfy their dogmatic fundamentalism on exorcising made up demons or devils while this whole ‘rona thing is going on instead?

      1. This week of all weeks I don’t want to hear sanctimonious bull from conservatives about “life”.

        1. The same believe in the sanctity of life that leads one to want to preserve the life of a pre-born baby also leads one to want to preserve the life of an 85-year-old Senior Citizen.

          Just sayin……

          1. Plenty of clingers ranting these days about how 85-year-olds need to be sacrificed to promote rapid economic recovery, resumption of social life, and the electoral prospects of Pres. Trump.

            The same clingers who rant about “personhood” amendments.

            Your assertion is unpersuasive.

        2. The virus death toll is far less than the abortion death toll.

          1. No it’s not. A fetus isn’t a person, so abortions aren’t counted in death tolls. Your contrary claim is religion, not science.

            If Farmer Joe wants to know how many chickens he has, he doesn’t count whatever eggs they happen to be sitting on instead. Same reason.

            1. ” A fetus isn’t a person, so abortions aren’t counted in death tolls. Your contrary claim is religion, not science.”

              Your claim that it isn’t a person has exactly squat to do with science.

              A fetus is a genetically distinct living entity of species homo sapiens. That is science, whether or not the law considers said entity a person.

              1. Sorry, but “genetically distinct living entity of species homo sapiens” takes in cancerous tumors. The question is whether it’s also a person, which requires some discussion as to what is, and is not, a person.

                I’m willing to concede that it’s a person near the end of gestation, but for at least the first trimester, it isn’t. That’s because personhood means having things that non-persons don’t, such as consciousness. Once it’s acquired consciousness, I think your personhood argument is much stronger. But that doesn’t happen until several weeks into the pregnancy.

                1. “Sorry, but “genetically distinct living entity of species homo sapiens” takes in cancerous tumors.”

                  No, a tumor is not a distinct entity in it’s own right. Not only is it not capable of surviving on it’s own, it has zero potential to develop to the point where it can.

                  “The question is whether it’s also a person, which requires some discussion as to what is, and is not, a person.”

                  Yes it does. However, this is a moral/legal question, not a scientific question.

                  1. The problem with saying that personhood is a moral question is that there is no agreement among differing schools of morality on the question. As difficult as it may be for you to grasp, there are people, and churches, who hold believe that it would be just as deeply and viscerally immoral to ban abortion as you think it is to keep it legal. I happy to be one of them. So until we have a moral consensus on the issue, the best the law can do is listen to science.

                    I’m not an expert, but I did have a semester of fetal development, and from a biological standpoint the idea that a zygote, or anything that develops from a zygote within the first several weeks, is a person, is just wrong. The answer to “what separates a person from other life forms, like cancerous tumors” is consciousness, which doesn’t arrive until about the end of the first trimester.

                    And by the way, even if you were right that it’s a person from conception, I — who clearly am a person, having already been born — could not legally force you to let me sleep on your couch for nine months. The idea that I could take over your body for nine months without your consent is a constitutional atrocity.

                    1. “The problem with saying that personhood is a moral question is that there is no agreement among differing schools of morality on the question. As difficult as it may be for you to grasp, there are people, and churches, who hold believe that it would be just as deeply and viscerally immoral to ban abortion as you think it is to keep it legal.”

                      I didn’t say that it was a moral question I said it was a moral and LEGAL question. If you can’t comprehend the difference, put down the keyboard and back away from the internet.

                      I actually think abortion should be legal.

                      ” The answer to “what separates a person from other life forms, like cancerous tumors”

                      The claim that a cancerous tumor is a life form in it’s own right is complete nonsense with no basis in real science.

                      “And by the way, even if you were right that it’s a person from conception.”

                      At no point did I claim that it’s a person from conception.

                    2. Matthew, I think you’re being a tad disingenuous here. Yes, it is a legal question in the sense that the law ultimately determines whether a fetus has legal rights, but the law does not operate in a vacuum. That determination is based on something, whether it’s science, morality, or simply a coin toss. My comments were directed to why morality is not a good choice — there is no moral consensus on the question — and the determination should therefore be based on science.

                      A cancerous tumor *is* a life form, but then so is green slime. My argument is that a cancerous tumor fits within your original definition of personhood. Since we both agree that a cancerous tumor is not a person, obviously there’s a problem with your original definition.

                      I’m happy to hear that you don’t believe life begins at conception. Most opponents of abortion seem to, though, and they’re flat out wrong.

    2. Do you think having a tide of late-term abortions after return to normalcy in 12 weeks is a better option?

      After all, right now only a small percent of elective abortions are beyond 14 weeks. A 3 month delay would take them all the way past viability to 26 weeks. Seems gruesome.

  3. PP is not suing to protect a womens right to abortion

    PP is suing because abortion is a major portion of their revenue. Its a lot more about money than the abortionists are willing to admit.

    1. The NRA is not suing to protect the peoples right to keep and bear arms.

      NRA is suing because gun sales are a measure portion of their revenue. Its a lot more about money than the NRA is willing to admit.

      1. Gun sales amount for no portion of the NRA’s revenue

        1. The NRA gets no money from gun manufacturers?

          1. The NRA receives no money from gun sales, and the amount it receives from manufactures is a minority of total revenue (the majority of which comes from dues and individual donations)

            1. 1. The NRA gets money from gun manufacturers who get their money from gun sales. If anti-abortion folks are going to play the ‘PP gets no federal funds for abortions but they get them for other things and since money is fungible they’re really getting it for abortions’ then everyone gets to play that game.

              2. What amount of the total revenue of PP comes from abortions?

              1. 1: I’ve always been an advocate of no one playing that game, because it’s an idiotic game, but I do admit that puts it right up the alley of both the anti-gun and anti-abortion folks. So if you insist we play then let’s play for keeps. Gun manufacturers get their money from gun sellers, gun sellers get their money from individual consumers, therefore even any money the NRA gets from gun manufactures is actually money from individuals

                2: Don’t know, don’t care. I’m not advocating PP be closed or denied revenue for abortion or any other service

                1. So if any company, say Y, decides, as an entity, to donate to X cause, you wouldn’t say ‘Y gave money to X’ you’d say ‘Y’s customers donated money to X?’ That seems an odd way to think about it.

                  But look, I’m not sure you’re getting that I’m not making an anti-NRA comment, I’m using the NRA analogy to criticize the anti-PP comment I originally replied to. My point was that both NRA and PP get money for fighting for what they fight for, but it’s silly to argue that they don’t ‘really believe’ in what they fight for and are just doing it for that money.

                  1. “So if any company, say Y, decides, as an entity, to donate to X cause, you wouldn’t say ‘Y gave money to X’ you’d say ‘Y’s customers donated money to X?’ That seems an odd way to think about it.”

                    Go back and re-read the first sentence of my last comment

                    1. How is you not advocating PP be closed or denied revenue relevant to my point about saying “if any company, say Y, decides, as an entity, to donate to X cause, you wouldn’t say ‘Y gave money to X’ you’d say ‘Y’s customers donated money to X?’ That seems an odd way to think about it.”?

                  2. Queen Amalthea has clearly never been a member of the NRA.

                    ALL the NRA does is solicit yet more money from it’s members — its why I don’t belong anymore, and why everything they send me goes directly into the trash, unopened.

      2. PP is not suing to protect a womens right to abortioPP is suing because abortion is a major portion of their revenue. Its a lot more about money than the abortionists are willing to admit.

        The NRA is not suing to protect the peoples right to keep and bear arms.

        NRA is suing because gun sales are a measure portion of their revenue. Its a lot more about money than the NRA is willing to admit.

        Democrats don’t want mass immigration because they think America is the shining city on the Hill. They want mass immigration because immigrants vote for them and they wanna roll the domestic electorate.

        Republicans don’t wanna stop mass immigration because they hate immigrants racistly, or because of jobs. They don’t want mass immigrants voting for Democrats.

        Democrats don’t want Puerto Rico to be a state because it’s cool to be a state. They want it to be a state so they get two more senators.

        Republicans don’t wanna stop Puerto Rico frok being a state because they hate Latinos. They want to stop Puerto Rico from beign a state to stop the Democrats from getting two more senators.

        Republicans don’t want school vouchers because they want alternatives to public schools. They want school vouchers to divert students from public schools and thus reduce the number of union government public school teachers voting for Democrats.

        Democrats don’t hate vouchers because they love public schools. Democrats hate vouchers because it reduces the number of unionized teachers voting for them.

        So what was your point? Best not to look under the hood at any of these things, and rather continue to argue the surface memes in service to your memeplex overlords who gain the power.

        1. Mine or who I was replying to? If you follow that I think you’ll see mine.

        2. Statehood for Puerto Rico would be quite interesting for reasons that a lot of people don’t think of. First, they would lose a good chunk of their pharmaceutical industry because it would be unconstitutional to give a *state* the preferred tax status PR now enjoys. Second, they’d have to comply with Federal law, starting with recognizing American CDLs — which they don’t.

          A lot of the “good-old-boy” corruption would end because it wouldn’t be permissible in a state, and local industries (eg. the electric utilities) would be taken over by large “mainland” companies. That would be good for the people of PR, but would hurt (and be vehemently opposed by) the people currently in power on the island.

          Everyone presumes that the State of PR would be a Democratic stronghold — I’m not so sure. Georgia isn’t anymore, and I think that economic development, which that island could see if it wasn’t just so damn corrupt, would turn the island red.

          1. A strong economy promotes Republican electoral prospects?

            That certainly explains California, Mississippi, the District of Columbia, Idaho, Massachusetts, West Virginia, New York, Arkansas, Connecticut, South Carolina, Alabama . . .

        3. Republicans don’t wanna stop Puerto Rico frok being a state

          The Republican Party platform explicitly calls for Puerto Rican statehood.

    2. PP is suing because abortion is a major portion of their revenue. Its a lot more about money than the abortionists are willing to admit.

      The facts say otherwise. But facts aren’t important to “pro-life conservatives” such as yourself. Just the obsession over controlling women.

      1. “The facts say otherwise”

        The Facts dont say otherwise. Abortion services is a major portion of PP’s revenue.

        1. Guys like reg count each time a woman picks up a free condom at PP as equal to getting an abortion. He just uses the PP spin about abortions being a tiny percentage of services and ignores the revenue issue.

          1. Did you read your own link? The only reason it’s particularly “complicated” is due to PP’s highly selective disclosures:

            Advocates on both sides have used other measures in an effort to portray a more representative figure of adoption services as a share of total services. But all face limitations, as Planned Parenthood — a non-profit — does not have to release financial information beyond its legal requirements.

            But we don’t know how many pregnant women Planned Parenthood serves every year or how many they refer to private providers for prenatal care, because the organization does not report that information.

            Planned Parenthood could end the speculation–and Pinocchios–by providing a more transparent breakdown of its clients, referrals and sources of revenues.

            1. Did you read the post you just replied to? It says it’s complicated.

              If that’s all you took from the link your confirmation bias is amazing.

              1. Did you read the post you just replied to? It says it’s complicated.

                Given that my reply had the word “complicated” in it, and directly addressed why I put it in quotes, I think you officially win the feigned confusion award for the day. Maybe longer.

                1. You just mined an article for a quote you like, and pretty clearly didn’t bother to actually read it.

          2. Very selective and misleading article.

            PP revenue – which is directly on point with my statement which you did not addres – You chose to argue #of services – which is not the point being addressed.

            PP’s revenue from abortion services during the FYE June 30, 2018 is approximately $220m and $300m.
            PP’s total revenue from non government reimbursed revenue is $366m and Govenment reimbursed revenue (medicare/medicaid, etc ) ranges somewhere between $250m to $$300m.

            Revenue from abortions comprise approximetely 40-50% of total revenue from services. It is a major profit center.

            1. Read the article again – it explains why revenue is not something anyone can claim to know.

              1. Sacrastro – you need to read PP’s financial report – using basic accounting skills and basic math skills, you can get pretty close.

                Revenue from abortion services in the range of 40%-50% out of total service revenue is pretty damn close.

  4. NRA is suing because gun sales are a measure portion of their revenue. Its a lot more about money than the NRA is willing to admit.

    Your statement is flat out wrong – The NRA doesnt sale guns, your false analogy simply does not jive with reality.

    PP on the other hand generates revenue directly from abortions and it is their leading source of revenue.

    1. No, the NRA doesn’t get all its money from gun manufacturers, but they manage to act as if they do.

      1. It’s just a confluence of interests: While the NRA upholds gun owners’ interests, one of those interests is having gun manufacturers around to buy guns from. But you can see the difference when a manufacturer tries paying the Danegeld.

        1. That’s not true. The vast majority of gun owners own one or two guns, don’t have any fantasies of overthrowing the government, are happy to go through a background check, have nothing to fear from gun registration and licensing, don’t own anything that could be characterized as an “assault rifle”, and have no desire to carry the weapon everywhere they go, and could have easily waited a few days to purchase the weapon.

          But a world where guns are available but strictly regulated, while perfectly fine for most gun owners, is bad for the gun industry. The NRA protects THAT.

          My suspicion is that (1) the NRA gets more assistance from the industry that they disclose, although not all of it is monetary and (2) the NRA has a very close relationship with the lobbying groups, such as NSSF, which explicitly represent gun manufacturers. In any event, there’s no doubt that their actions represent the interests of the gun industry, not America’s gun owners.

          1. Women prefer semi-automatic “Assault Rifles” because they have less recoil — *because* they are semi-automatic, and that energy is re-directed to chamber the next round.

            And as you may (or may not) know, the only difference between a Chevrolet and a Cadillac is cosmetic. So too with rifles — excepting bolt-action (marksmanship) rifles and lever-action carbines, essentially every rifle sold today is “semi-automatic.” The technology is superior and they work better in a lot of ways.

            One of the best deer rifles is the M-1 Garand firing the .30-06 round. This was the weapon the US military used in both WW-II and Korea, it is semi-automatic, and the “06” references the cartridge being designed in 1906 by the US armory in Springfield, MA. It definitely is an “assault weapon” — and it is the most basic of hunting rifles.

            Your argument falls apart on its face.

            As an aside, the reason the military got rid of the M-1 was the belief that the average soldier didn’t need that much firepower — they didn’t need the range as most of the shooting was done at closer distances, and they could go with lighter weapons and lighter rounds (i.e. the .223 (5.56 mm) used today).

            1. I agree with you that assault weapons bans that ban cosmetic features are dumb.

              But my statement- that the NRA’s actions protect gun sales rather than the preferences of gun owners- is correct.

              1. And as a life member of the NRA since the 90’s, I will continue to assert that you’re wrong.

                Gun ownership requires that there be an industry selling guns, a point which is as obvious to gun owners and the NRA as it is to the anti-gun movement. And thus the NRA has some degree of solicitude towards the firearms manufacturers. But when the interests of owners and manufacturers come into conflict, the NRA takes the side of owners.

                1. “And thus the NRA has some degree of solicitude towards the firearms manufacturers . . .”

                  much as you had some degree of solicitude toward birtherism.

                  How often and to what degree has the NRA fought against the interests of gun manufacturers?

    2. Technically, the NRA does sell a few guns. “Commemorative” guns of the sort your average gun owner would be embarrassed to be seen packing, as fund raisers.

      But almost all their revenue IS individual dues and donations.

      The left has trouble accepting this, because almost all their own groups are AstroTurf, financed by a handful of billionaires, subverted foundations, and diverted tax dollars. They can’t believe their foes don’t all operate the same way.

      1. “The left has trouble accepting this, because almost all their own groups are AstroTurf,”

        Wow, what a ‘every accusation is a confession’ doozy.

        1. Yeah, right. Bloomberg by himself provides almost all the gun control movement’s funding.

          There’s not a single gun control organization I’m aware of where the membership has any role in selecting the leadership, or influencing policy. If you’re a gun control organization, the “members” are little more than window dressing for a PR campaign funded by one of a handful of billionaires or foundations. Astroturf.

      2. Is “Brett Bellmore” your real name, or is it an alias that stands for “birther” and “Bircher?”

  5. Ooh — the wire hangers must be FLYING off the shelves!

Please to post comments

"Senator, I Have Worked with Professors at the University of Pennsylvania," I Say

"I know professors at the University of Pennsylvania. Professors at the University of Pennsylvania are friends of mine. Senator, you're no University of Pennsylvania Professor."


For the underlying story, see here:

"When I left the United States Senate, I became a professor at the University of Pennsylvania," Biden said. "And I've spent a lot of time—and the University of Delaware has the Biden School as well, so I've spent a lot of time on campus with college students."

Apparently Biden was given the title of Benjamin Franklin Presidential Practice Professor at Penn (in 2017, after the end of his Vice-Presidency), which involved him giving four speeches a year, for $390,000/year, according to PhillyMag (David Murrell).

For the underlying source of the quote, you young whippersnappers who don't know the great lines of my youth, see here.

UPDATE: Some commenters argue that Biden was technically correct to say he was a professor, given his title. But I think that misses the point: Quayle may have been technically correct when he had said "I have as much experience in the Congress as Jack Kennedy did when he sought the presidency"; Bentsen's response was that Quayle was still no Jack Kennedy, regardless of technical analogies of experience. Likewise, Biden had the title Professor (though I think it's rather misleading to describe yourself as a professor when your job doesn't involve substantial teaching or substantial research), but he's still no professor.

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  1. So … Biden was in fact given a position with the rank of Professor? And it was not honorary, remuneration being more than a third of a million per annum? And four speeches might not be many classes, but as a former Veep he presumably is qualified to speak on Presidential practice?
    So … The Senator is, in fact, a University of Pennsylvania Professor?

    1. No, he isn’t in fact a professor in the usual sense of the word “professor,” just as my Juris Doctor doesn’t make me a “doctor” and a Ph.D. in botany doesn’t make one a philosopher. Universities may have various institutional (or historical) reasons to give various titles, but someone who has neither a substantial teaching role nor a substantial scholarly role at a university is not actually a professor.

      1. (I will add, to stave off the legions of outraged botanist-historians, that once upon a time a Ph.D. in botany might have been seen as a “natural philosopher,” but not today.)

        1. Read John Henry Newman’s Idea of a University

      2. A good answer, except that I can’t help feeling you would be on the losing side trying to argue that in a courtroom. Some full professors of renown have no teaching duties; and in places like the Institute of Advanced Studies, no scholarly demands of any kind either. Usage varies, but “Professors are expected to be national or international leaders in their field of expertise” and Biden could fairly claim to be that.

        1. And in a courtroom, Quayle wouldn’t be held liable for having compared his political experience to Kennedy’s (which is what Bentsen was responding to). It’s not that Biden’s statement or Quayle’s would be, say, actionable fraud, or perjury if said in courtroom testimony. It’s that it claims standing that the person doesn’t deserve.

          (Leadership in one’s nonacademic field of expertise isn’t enough to be a professor; a great businessman would be wrong to call himself a professor under similar situations, too, in the absence of adequate teaching or scholarship responsibilities.)

          1. “Leadership in one’s nonacademic field of expertise isn’t enough to be a professor; a great businessman would be wrong to call himself a professor under similar situations, too, in the absence of adequate teaching or scholarship responsibilities.”

            Meaning no disrespect, academia don’t work that way….

            Taking the latter first, great businessmen are routinely awarded faculty status and brought in to teach MBA students. The infamous “Trump University” was really nothing more than what a lot of other places were doing, they just name the buildings after the businessman instead of the university.

            “Camelot High School”, aka Harvard’s Kennedy School of Government, *routinely* brings in former politicians, including Bernie Sanders. Conversely, there is the interesting case of Charles Lieber who was (is?) a Department Chair at Harvard and apparently set up a research lab in Wuhan, China that Harvard never knew about — he was arrested last January by the FBI.

            And then several of my MDs hold faculty status at either Harvard or Tufts Medical Schools — they are surgeons who never leave the hospital but supervise residents. And a good chunk of the Physics Department at UMass Amherst teach no classes, some are funded by outside research and some just pretend to be.

            My point is that it isn’t as simple as you make it appear — an analogy would be the mistaken belief that everyone working in a law office is a lawyer. No, there are the secretaries, the paralegals, perhaps a land surveyor or two — and then the various form of “partners.”

            Following this analogy, receiving tenure is like making partner, and that’s why I keep making the point about tenure (and “tenure track”). Tenure originally was supposed to be awarded on three criteria — teaching, research, & public service — and while I think that’s what you are alluding to, it’s no longer true.

            Case in point all the administrators granted tenure because they were hired as an administrator. Conversely, there are no shortage of people who somehow made it through the tenure track and have absolutely no respect from anybody who knows anything about teaching — in some cases, there’s not insignificant mental health issues involved.

      3. Respectfully, Professor Volokh, you are wrong on both counts.

        First, Ph.D. stands for “Philosophiae Doctor” which translates to “Doctor of Philosophy.” That’s a fact, although I will agree that having a Ph.D. in botany no more makes one a philosopher than many Liberals are liberal — words often have multiple meanings.

        Second, if the University of Pennsylvania says that Biden is a professor (i.e. if he isn’t making this up), then he is a professor because IHEs have the right to award faculty status (and tenure) to anyone whom they damn well please. They routinely do so when hiring high-ranking administrators (e.g. Provost, Chancellor, President) and while those people usually go somewhere else when done, they always have the option of “going back to the faculty.”

        It’s usually problematic when they do because the department (e.g. Botany) neither wants them nor are they able to teach anything the department needs taught, but it happens. Likewise, the ROTC contract stipulates that the institution will award faculty status to the ROTC instructors.

        The question of if Biden deserves to be a Penn Professor is quite legitimate but it doesn’t negate the fact that he apparently is one — much like his son was (briefly) a commissioned officer in the Naval Reserve.

        Assuming — well, I trust you remember why his candidacy imploded in 1988m which comes full circle to why someone else was mentioning having known Jack Kennedy…

        1. The problem is that he’s using Penn’s title to mislead people about what he actually did. It’s the Lincoln* dog’s tail situation. If Penn, its faculty, and Biden want to call the dog’s tail a leg, that fine. When they refer to legs among each other, they’ll know that they are referring to either the legs of the tails.

          But it’s another thing to go out in public and proclaim that there are five-legged dogs because you and the faculty only see five-legged dogs.

          The problem isn’t that Biden and Penn agreed he was a professor (well, at least not a problem for anyone other than those paying tuition). The problem is that he used the title “professor” to suggest he was something that he was not.

          (*Maybe not Lincoln, but gets attributed to him anyway. Saved you the response.)

          1. “The problem is that he’s using Penn’s title to mislead people about what he actually did.”

            No, the problem is that Penn sold him the title.

            The university of today is about money, and some administrator made the decision that giving him that title and the chunk of change will somehow benefit Penn. It may be the fame & fortune that Biden will bring, it may be payment for favors Biden did in the past (don’t underestimate that), and it may be how much the development people can leverage it to bring in other monies.

            But Penn awarded the title — and Biden is well within his rights to use it, as long as he does so accurately. Much like a paralegal has every right to say “I work for the firm of A&B”, assuming the person does.

            1. I would take issue with the notion that Penn “sold” him a title when it is Penn that is paying him the princely sum of $97,500 a speech. It seems more that he extorted a title in exchange for allowing them to list him on their faculty.

              It’s interesting how Biden’s seem to get so much for nothing, but, it is Pennsylvania and he did get Rosemont-Seneca all that money and we all know the Heinz family owns Pennsylvania. Also, somebody got their buddy Devon Archer’s conviction tossed out by that Obama appointed “judge” as well.

      4. According to Merriam a definition of Professor is:

        “a faculty member of the highest academic rank at an institution of higher education”

        So in a well recognized dictionary sense Biden was correct. He’s a faculty member at that rank at an institution of higher education.

        1. Accurate but misleading. That usually counts as a lie. And an insidious lie at that.

          1. Accurate but misleading=insidious? Wow, you have a very low threshold for outrage…Look, he lent his name to sub-unit at the institution. It’s likely he spent time there at the least talking about the planning and such around the sub-unit’s mission and such. And he lectured there (we all know how much a former President or VP’s speeches are valued at on the market) more than several times. The university, for whatever reason, felt like that role warranted (or necessitated) bestowing the rank of Professor.

            Is it that situation the most common thing that comes to mind when someone hears the word ‘professor?’ Nah, I’d admit. But it’s literally what is the second most accepted sense of the term. This is pretty far from ‘insidious’ (in fact, your use of that term is, then, misleading…and I guess therefore ‘insidious?’

        2. I find it interesting that the AAUP (American Association of University Professors) defines its membership criteria as this:

          “Any person who holds a professional position of teacher, researcher, graduate student, or related professional appointment, excluding administrators but including any member of a bargaining unit represented by a chapter, at a college, university, or professional school of similar grade accredited in the United States or Canada…”

          Note that the word “professor” does not even appear…

        3. Does he get to vote at faculty meetings? Including on, say, tenure decisions?

    2. The more topical question is will the University of Pennsylvania withdraw Biden’s honorary professorship now that Biden has been credibly accused by a former aide of sexual assault? Five universities withdrew honorary PhD’s from Bill Cosby, so there is plenty of precedent for it.

      1. Expect that when a criminal (not civil) complaint is filed. Cosby’s one criminal sentence was 3 to 10 in state pen, handed down in April 2018; the first hearings in that place were late 2015, and Penn State pulled his “honorary professorship” shortly afterwards.

      2. Without going too far into the weeds, it’s a lot easier to withdraw an honorary doctorate than to revoke tenured faculty status. Robert Mugabe is a good example and a lot of IHEs that had awarded him honorary degrees (including UMass, eventually) revoked them because he was then killing large numbers of both people and elephants, as well as being a generally not-so-nice guy.

        Tenure can only be revoked for three reasons, one of which is moral turpitude. Cosby’s criminal conviction constituted that, hence grounds to revoke tenure. Tenure is like the First Amendment, it’s defended as a principle.

  2. While my first memory of presidential campaign politics was a Reagan-Mondale debate, I was very young and my first vivid memory was watching a VCR recorded tape of the Benson-Quayle VP debate in 1988 in middle school. That moment stuck with me, as did Quayle’s response of “Senator, that was totally uncalled for” and the audience cheers after each of them got in their shots. I also remember betting a liberal classmate (which, in 6th grade meant a classmate whose parents were liberals) $5 that Bush would beat Dukakis. She did pay up, and I wasn’t enough of a gentleman yet to refuse to collect on the bet. I’m sure I bought some extra pencils for pencil fighting, or maybe some Garbage Pail Kids cards, with the money.

    1. Indeed. I’d add this interesting point about that epigram: the Democrat belittling a Republican saw his clever, clever move backfire. Not only did Bush and Quayle beat the Democratic slate of Dukakis and Bentson – by a whopping landslide – but other Republicans took great delight in adapting it to their own political purposes. For those who did not experience them, the “Aftermath” segment of Eugene’s link enumerates several:
      – Reagan observing Clinton was no Jefferson
      – His daughter Patti disrespecting those who would compare themselves to her Dad, and
      – West Wing actor Bradley Whitford (and active Democrat) disrespecting Sarah Huckabee Sanders for comparing herself with C.J. Cregg, saying “I know C. J. Cregg. C. J. Cregg is a friend of mine. You’re no C. J. Cregg”.
      In this connection it is useful to remember that Whitford does not know Cregg, and Cregg is not a friend. But at least Whitford was correct in his last assertion, for Sanders is indeed no C. J. Cregg; for Cregg is fictional – just like the fictional Presidents of Democratic leanings that the “West Wing” loves to depict.

      1. Quayle was unqualified though. We remember the line, and not Quayle’s pathetic response, for that reason. Quayle really did have no business comparing himself to Kennedy, and we are lucky he only served one term as Veep and HW Bush lived through the term.

        1. Would you consider Obama unqualified? He had even less experience than Quayle. Both didn’t crash the car, though maybe hit a few guardrails though.

          1. Qualification = experience + aptitude.

            Obama had a brilliant intellect and great communication skills, things that Quayle, alas, lacked.

            1. I can see why some would think those things.

              Obama and a brilliant intellect? Debatable. By evidence of accomplishment, above average. Anybody who gets elected president is smarter than the average bear, so even W. Bush and Reagan are on par with Obama here. Nothing special.

              Communication skills? Great on a teleprompter, decent debate skills due to repetition of catchy talking points and outstanding straw-manning abilities, but a stuttering gibberish monger when speaking extemporaneously. He has, what the French call, a wooden tongue. He can say a lot without saying much.

              Quayle? Perhaps not the best VP choice, but one big thing to remember. The liberal media says every Republican is stupid, while glossing over the gaffes of Democrats, and Obama said some stupider things than Quayle spelled potato with an “e” on the end. Was Quayle as smart as Obama? Likely not. As good a communicator as Obama. Admittedly not.

              1. Quayle was a victim of bias as are all Republicans, while Obama is in your objective opinion an average intellect and bad speaker.

                Do you see what a parody you’re being?

                1. Let’s see…a Sarcastro comment, let’s check if it meets standard Sarc comment criteria.

                  Straw-manning? Check
                  “Quayle was a victim of bias as are all Republicans…”
                  *I said MEDIA bias*

                  Bad attempt at being ironically funny? Check
                  “Do you see what a parody you’re being?”
                  *pot, meet kettle, people in glass houses, etc. etc.

                  Misconstrues what is actually said? Check
                  “…Obama is your objective opinion an average intellect…”
                  *I actually said he was above average, due to the evidence of accomplishment, that is, getting elected president*

                  Coming from a place of ignorance? Check
                  *Just take a moment on YouTube and do a search with the term “Obama stuttering” or “Obama ‘uh’ count” then get back to me. I triple dog dare you.*

                  Lack of self-awareness? Check, though admittedly some crossover his bad sense of irony.
                  Useless in furthering the discussion? Again, Check

              2. To suggest that Trump is smarter than the average bear is an insult to bears everywhere.

                1. Two points, average IQ isn’t as high as you would think, and secondly, I wish we had less narcissistic politicians like Trump too, but the process doesn’t select on it.

              3. I hate to tell you this, but potato can also be spelled potatoe — it’s a archaic but recognized spelling.

                More important, the card had it spelled that way — and this is like second-guessing your compass, you don’t do that. You have to trust your staff, and I wouldn’t be at all surprised that someone did this intentionally.

                1. Holy crap you’re a tool.

                  Archaic spellings and blindly following cue cards? This is not a windmill worth tilting at, dude.

                  1. I agree that it’s somewhat irrelevant what the archaic spelling of potato was.

                    But, yes, he actually was given a card by the school that had potato spelled with an “e”, per contemporary news reports. You don’t have to be clinically paranoid to think it might have been a setup, though it would certainly help.

                    Granted, it would have been nice if he’d been confident enough of the correct spelling to have tossed the card aside.

        2. “Quayle really did have no business comparing himself to Kennedy”

          Sure he did. His experience in the House and Senate was almost identical and they were similar in age and were both son’s of rich men.

          You can’t argue JFK was a towering intellect either.

          1. Kennedy was, by all accounts of those who knew him, far smarter than Quayle.

              1. It is always entertaining to observe a birther opining on evidentiary standards.

                As much fun as watching birthers attempt to persuade that they are not racists.

        3. Bill Weld, clearly not in political alignment with Dan Quayle, stated at the time that Quayle was “one of the brightest people in the party.” Quayle was Dyslexic, which is very different from stupid.

        4. Was he really unqualified? I don’t recall him particularly messing up as VP, except for some verbal goofs that look like the eloquence of Cicero compared to what’s been coming out of Joe Biden’s mouth lately.

  3. Great line. And Quayle wasn’t any Jack Kennedy, but he was a vice-president. That wasn’t any fault of Bentson’s, it was because Bentson was on a ticket with Michael Dukakis, who also wasn’t any Jack Kennedy.

    1. Dukakis wasn’t even an Adlai Stevenson.

    2. Saturday Night Live said “at the request of the parties, this year’s ballot will read:



    3. Bentson was no LBJ either.

      A totally forgettable politician of no achievements but one rehearsed line in a debate in an election he lost. He looked and talked like a Senator, basically Walter Pidgeon in Advise and Consent

      1. Saturday Night Live used my joke once . . . it involved Dan Quayle.

        Thanks for the inspiration, Vice Pres. Quayle.

  4. Notwithstanding the Goldwater Rule, one does have to notice Biden’s apparent cognitive functioning issues. It’s a known fact that he has had a past (nearly fatal) issue with bleeding inside his brain, and, ummmm……

  5. More interesting to me, is the question of why they paid Biden $390,000 for a no work job. That’s the tuition/room/board (approx $71,000) of 5-1/2 students.

    1. Same reason Biden’s son got nearly half a million from a corrupt Ukrainian energy company for a no work job.


  6. Why is everyone focused on whether he should or shouldn’t legitimately be called a professor? Let’s focus on the fact that a professor is being paid $390,000 a year for giving four speeches. You want to cut college costs, let’s look at these absurd professorships.

    1. One of our prestidigitous liberal-libertarian universities chooses to hire a seasoned statesman to impart his wisdom to students, and clingers like you whine about the cost.

      Yet you routinely shell out huge sums of money to get creationism studies degrees from Liberty University.

  7. Between this and the recent credible assault allegation, I’m not sure things look good for Biden.

  8. A cherry-picked swipe at Biden, but no observations concerning the conspicuous performance — involving a steady stream of consequential falsehoods and misleading statements– of the President during a pandemic, professor?

    That’s cowardice. Ankle-nipping, shabby, partisan cowardice.

    It’s probably time for some viewpoint-controlled censorship.


    1. I did a better Kirkland than you did. Sad!

      1. “I did a better Kirkland than you did.”

        Artie Ray Lee Wayne Jim-Bob Kirkland was the equal of any of the clingers who frequent this blog, and better than nearly all of them, until he was banned by the Volokh Conspiracy Board of Censors.

        I wonder how FIRE would rate the Volokh Conspiracy for viewpoint-controlled censorship.

        1. Since you’re still here?

          Probably with an A+

          1. Your selective tolerance of partisan censorship is noted and disdained, clinger.

        2. “I wonder how FIRE would rate the Volokh Conspiracy for viewpoint-controlled censorship.”

          Is this blog an arm of the state? Since it’s not, FIRE would presumably apply the standard it uses for private institutions – that the blog warn participants in advance if their free-expression rights can be curtailed.

          And lo, there’s an editor’s note which says “We reserve the right to delete any comment for any reason at any time.”

          But if this isn’t sufficient, then by all means protest the censorship policies. May I suggest you boycott the site?

    2. “A cherry-picked swipe at Biden, …That’s cowardice. Ankle-nipping, shabby, partisan cowardice.”

      Wrong again, Arthur. The fact that Prof V. is addressing this relatively minor allegation while remaining silent about the credible rape allegation is evidence that he’s in the tank for Biden.

  9. “Benjamin Franklin Presidential Practice Professor”

    There are two, Biden and Jeb Bush. So, a naked political influence payment by Penn, nicely balanced between parties.

    Part of the The Andrea Mitchell Center for the Study of Democracy “founded through a donation from Andrea Mitchell in 2017.”

    So taxpayers are paying part of the 390K [plus whatever Jeb gets] since her deduction was tax deductible.

    Network TV news reader [married to a former Fed Chair] funds a “center” at an Ivy League college and two washed up politicians get sinecures.

    The “Swamp” summed up.

    Time to seize the endowments like Henry VIII and the monastrries.

    1. I don’t know what you’re complaining about, simply knowing the details of these professorships has educated me about democracy and how it works in practice.

      What more do you want?

    2. “Time to seize the endowments like Henry VIII and the monastrries.”

      Redistribute the property to people with better political connections?

      1. Pay off the National Debt….

        1. Which scenario do you consider more likely, in practice?

    3. “two washed up politicians get sinecures.”

      minor correction: *one* washed-up politician (the establishment Republican) gets a sinecure, while another sinecure goes to a gently used but still viable politician (the Democrat).

  10. Artie Ray Lee Wayne Jim-Bob Kirkland was the equal of any clinger, and better than most, until he was retired by the Volokh Conspiracy Board of Censors.

    1. Did you try to run two *personae* at the same time? Or was this other persona even more offensive than the current one?

      1. Artie Ray was a parody. Until his too authentic conservative commentary invoked the proprietor’s censorious, hypocritical streak.

        In which context Artie Ray Lee Wayne Jim-Bob Kirkland continues to speak volumes.

        1. Was he as clever and original as you are?

          1. Or perhaps he was more so, because I don’t see how he could be *less* so.

            1. If the Volokh Conspiracy didn’t figure Artie Ray was an effective advocate, it would not have banned Artie Ray.

              Artie Ray is content. Knowing that this blog is the best that right-wing academics can manage, and knowing the effect the unvarnished conservative views expressed here have on the non-clinger audience, is pleasing to him.

  11. I generally try to avoid reading Mr. Kirkland’s posts, and certainly to avoid responding to them. But, just this once, since he has been harping on how he has been censored, let me mention the comments of his that I’ve deleted, from my files, with the portions that warranted the deletion set in bold:

    In reply to Sevo.
    The slack-jawed bigots know this is their last gasp, Sarcastro. They’re not even trying to reason or acknowledge reality anymore.
    If you knew your side was about to be stomped for good in American politics, you might act that way, too.

    In reply to Jeff_Kleppe.
    Get an education, Jeff Kleppe, you bigoted rube. No one — other that the slack-jaws — contends the ‘no evidence’ was established.

    In reply to Sevo.
    Open wider, Sevo. Your betters are not done shoving progress down your whiny, bitchy right-wing throat.

    In reply to Bob from Ohio.
    They showed your hero to be a lying, cheating jerk, you half-educated bigot. If you didn’t spend your life in a can’t-keep-up stretch of backwater Ohio, you would recognize this.

    As I recall, these were all from one post. (I hadn’t read them at first, but a reader pointed them out to me.) They seemed to me to be the sorts of substance-free personal insults that merited deletion. To be sure, these are the sorts of comments that someone who thinks of himself as one of “our betters” might post, but I don’t really feel the need to host them on my blog.

    1. By the way, here also are some examples of comments about Mr. Kirkland that I’ve deleted (though I’m sure there are many others I haven’t noticed, since these aren’t the sort of comments I’m eager to read):

      Whereas you’re not a nut, you’re just another idiot leftist fuckwit.

      Well, they haven’t leashed dumbfucks like you, yet.

      So you’re a true hypocrite, then? Go die in a fire, miserable cur.

      F*** off, slaver.

      Look who’s back to Arse Kiss.
      It’s ArtieK!

      Reverend Lying Ass.

      Everyone already knows you are a cocksucker and a coward. If you are going to butt in, you should at least answer the question.

      Something about “Cuckland,” though I didn’t record the details.

    2. I will add that I don’t recall what happened to Artie Ray Lee Wayne Jim-Bob Kirkland — I try not to occupy my scarce neurons with such matters any more than strictly necessary. What I quote is what I have in my files (which only go back several years) about Arthur Kirkland. I can say, though, that my general practice is to (occasionally) delete comments and (much more rarely) ban commenters for personal insults and vulgarities, but not for their politics, whether liberal or conservative or otherwise.

      1. Apologies for posting the remark which seems to have provoked controversy. Will try to avcid such a fuss in future.

        1. Oh, not at all — your comment was perfectly legitimate, and we can’t live our lives worried about what someone on a hobby-horse of his own might say in response.

  12. It’s pretty hypocritical to criticize Sen. Biden for this while giving that guy on Gilligan’s Island a free pass. Even if he could make a record player out of palm fronds.

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Delaware Governor Changes Order, Allows Gun Shops to Remain Open,

though subject to stringent rules aimed at preventing coronavirus spread.


WBOC (Tom Lehman) reports that the new rule provides,

Firearms dealers may conduct sales of firearms, ammunition, and other goods directly related to responsible firearm storage and maintenance, by appointment only. No more than two appointments per half hour shall occur, and sellers are limited to operating during normal working hours they operated on prior to the State of Emergency. Any seller who violates such directive may be subject to criminal prosecution or other civil enforcement remedies up to and including arrest or the involuntary closure of the business.

Hard for me to see much of a justification for the "normal working hours" rule, which I expect will magnify the delay people will face in waiting for an appointment; but it may well be the political compromise that it took to make this happen.

Note that the Pennsylvania Governor likewise originally included gun stores in the closure order, and then likewise changed course.

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  1. “but it may well be the political compromise that it took to make this happen.”

    Which is to say, the order was purely motivated by hostility towards the civil right it violated, and all that has happened is some recalibration as to how much they can get away with violating it right now.

    1. “the order was purely motivated by hostility towards the civil right it violated”

      From looking at the list, the original order didn’t shut down ‘gun stores’, it shut down ‘Sporting Goods, Hobby, and Musical Instrument Stores’. The change is to except gun stores from that categorization. So one explanation is that they were setting around cackling with glee that they could finally shut down gun stores, and another is that they looked at the category ‘Sporting Goods, Hobby, and Musical Instrument Stores’, spent 5 seconds deciding, and thought ‘that doesn’t sound very essential’. Occam’s razor points to the second as more likely, IMHO.

      1. There are no cranks quite like gun nuts.

        Except, perhaps, religious zealots.

        Who tend to congregate together (the gun absolutists and the superstitious kooks).

        Carry on, clingers.

        1. I sorry this is happening to you, Artie…

      2. I suspect they started out cackling with glee that they could finally shut down gun stores, then somebody suggested sticking it to Hobby lobby, too. Then it occurred to someone that they’d better pad the list a little to achieve a measure of deniability.

        Look, you complaint might be valid if the gun control movement was born yesterday. But it wasn, and the presumption of good faith in gun regulations has long since been rebutted.

        1. Don’t you realize that they SUPPORT the 2nd Amendment? I mean, they support an “interpretation” of it that would render it completely meaningless, but that’s still strong support!

          1. I bet one of them even owns a double-barreled shotgun that he aimed at a rabbit once.

        2. I suspect they started out cackling with glee that they could finally shut down gun stores

          Brett’s fan fiction life continues.

          1. Sarcastro, I may be in my 60’s, but I don’t have Alzheimer’s yet. I’m never going to submit to these demands of yours that I just ignore a lifetime of watching gun controllers operate.

            1. You’re not just watching them, you’re writing about what they do when you’re not watching.

              That’s fan fiction.

              1. It’s often the case that what they do when we’re not watching is what causes the most problems for 2A supporters specifically, and the citizenry in general.

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Federal Lawsuit in N.J. Challenges Total Closure of Gun Stores

"At the same time these Defendants" "entirely closed off any and all means for law-abiding private citizens to obtain firearms in New Jersey," "the State has permitted the retailers of many other products—including alcohol, marijuana, and office supplies—to continue distributing goods to the public."


From the motion for an injunction in Kashinsky v. Murphy, filed today in federal court in New Jersey (by Adam Kraut of the Firearms Policy Coalition and David Jensen of David Jensen & Assocs.), and supported by the Firearms Policy Coalition and the Second Amendment Foundation; I plan on blogging the response as well, when it comes available [UPDATE: Ass'n of N.J. Rifle & Pistol Clubs, Inc. v. Murphy, also filed today (by David Thompson and Peter Patterson of Cooper & Kirk and Daniel Schmutter of Hartman & Winnicki), makes a similar argument]:

On March 21, 2020, Governor Murphy and Colonel Callahan entirely closed off any and all means for law-abiding private citizens to obtain firearms in New Jersey. At the same time these Defendants took this action, they have permitted numerous other retail businesses to continue their operations under limited conditions—meaning that this is not a situation where it is simply not possible to allow any retail businesses whatsoever to continue operation. Rather, the State has permitted the retailers of many other products—including alcohol, marijuana, and office supplies—to continue distributing goods to the public.

The Defendants' actions have a particularly significant impact because in the State of New Jersey the only way a person can obtain a firearm is by means of a transaction consummated at the premises of a licensed gun dealer. Closing all gun stores, without exception, results in a situation where it is illegal to purchase a gun. Period.

To be sure, the COVID-19 outbreak is an existential threat that requires significant sacrifices and adjustments by all people, regardless of their views on firearms (or anything else). But no interest, no matter how compelling it may be, can justify the elimination of constitutional rights. Governor Murphy could not cite the seriousness of COVID-19 to justify bans on speech or reading, nor would the COVID-19 outbreak justify convicting people of crimes without providing them  with trials, or searching houses door-to-door without warrants. The Constitution imposes a floor the government cannot go beneath. In crafting emergency orders to address threats, including very serious ones, the government must take care to ensure that it does not go too far.

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  1. I’m serious when I ask – what is the reasonable argument for the state to shutter gun stores completely effectively prohibiting even the lawful private sale of firearms? If we were talking about wartime and the writ of habeas corpus was suspended I think that would be enough. But, this is the equivalent of a disaster emergency and I can’t see that being enough, even under intermediate scrutiny, to justify an outright ban when there are many, many other less restrictive and reasonable means available given the nature of the situation.

  2. I am amazed that states like California get away with a one gun purchase per month law.
    What possible argument could they make for that in a court of law?
    At least the N.J. Governor could conceivably make some laughable argument about public safety during a crises.
    But one gun per month?
    The argument is guns are icky

  3. This will be interesting — and I’m glad it is being brought.

  4. Sounds like an infringement to me – – – – –

  5. Once again, please explain why the 2A rises above other rights—all the others which can be heavily burdened during an emergency, and without legal controversy. During an unprecedented emergency, by the way, because it applies at once to every state, and might reasonably be expected to impair any critical service.

    Please explain also why emergency policy must assume every would-be gun purchaser must have lawful intent. For instance, why shouldn’t a sudden surge of gun sales applicants during emergency conditions be assumed to announce an increased likelihood of gun use—including unlawful gun use—provoked by emergency conditions? Why must emergency policy ignore a plain-view threat of increased demands on emergency services while those are most needed to attend to other business?

    1. Start from a false premise and it’s no surprise that you get to an invalid conclusion. The Second Amendment is not being elevated above other rights. This suit merely demands that it not be suppressed below other rights. As the article above already describes, the decision to close other gun stores but not a vast array of other retail establishments fails to pass even rational basis, much less the standards that should be required for an enumerated right.

      As to why emergency policy must assume that ever purchase has lawful intent, for the same reason that we require that standard for everything and always. Innocent until proven guilty. You can not project your irrational fears onto the rest of us even during an emergency.

      As to why your fears are irrational? Because these are legal purchases and transfers we’re talking about. People who are willing to jump through the many hoops and hurdles rather than just buying something from the black market. These are the very law-abiding citizens that you should want to be armed and providing “herd immunity” from predators and tyrants. These law-abiding citizens are anything but a threat of “increased demands on emergency services”.

      1. “These are the very law-abiding citizens that you should want to be armed and providing “herd immunity” from predators and tyrants. ”

        Assuming he isn’t tacitly counting himself among their numbers.

    2. Why must emergency policy assume that everyone seeking an abortion have lawful intent? Providing an abortion to a 15-year-old destroys the evidence of who the father was — and often of a statutory rape. So Uncle Buck takes her to get an abortion and hence eliminates the evidence of something he should be in jail for.

      Two can play this game….

    3. Which other enumerated rights are facing suspension in this current crisis? I imagine you would likely cry foul if the state decided it was suddenly prudent to quarter soldiers in your place of residence. (3rd)

      Likewise with the 1st, 4th, 5th, 6th, 7th, 8th . . . I supose you could make an argument that states have partially suspended our right to peaceful assembly. But it’s not like the governor of some random state is mulling an executive order that effectively ends your right to defense counsel, for instance.

      1. Which other enumerated rights are facing suspension in this current crisis?

        If we are to take the above-referenced case seriously, then the freedom of the press is currently “suspended” anywhere that bookstores are being shut down. I’m actually unable to get books from one publisher right now, because they’ve been prohibited from working. Delays and slowdowns in the judicial system are also putting pressure on, if not essentially suspending, various constitutional rights we have to “due process” and speedy trials, etc. And the point you make about peaceful assembly is not trivial – the police would probably break up any public protest gathering that one might seek to bring together. Which we may well see people trying to do, if these shutdowns go for too long.

        Eugene’s case gets a big eye-roll from me, but in the end I can’t begrudge a civil libertarian trying to earn some cred in a time of unprecedented crisis. Let’s just make sure we apply similar thinking to the mandatory abortion clinic closures we’re seeing across the country.

        1. Yeah, the difference is that freedom of the press, assembly, or the right to petition is not being completely extinguished. The right to buy a gun is. It’s not even close to analogous. Period.

          1. The 2A is not a right to buy a gun. If it were, you would be correct. But because it is a more extensive right, including keeping and bearing arms, with many other specific protections added by implication, you can readily see that the 2A, like the others, is only partly burdened during this emergency.

            1. Yeah, no. For someone who does not have but wants a gun, the Second Amendment is entirely suppressed. And more to the point that you keep ignoring, shutting down gun stores but not shutting down the vast array of other shops fails to pass even rational basis.

            2. If I can’t buy a gun how am I supposed to exercise my right to keep and bear a gun? (Well there is one way but the hoplophobes are trying to put a stop to that. And it costs more too. Not everyone can do it though.)

        2. Don’t pull the closed bookstores thread too hard. You might unravel your sweater there, too.

        3. Pssssst…I’ll let you in on a little secret. You can easily buy books from online vendors without ever setting foot in a brick-and-mortar store front. In fact you can do so far more easily (and probably less expensively), and with far more selection at your disposal, and have them dropped off right on your front door step.

          Now, see if you can figure out if the same absence of burden exists with regard to firearms if physical stores are shut down.

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Patents During a Pandemic


Should patent law function differently during a pandemic? Let's place aside for now the question of whether research efforts during the pandemic should be entitled to new patents, and focus instead on the argument that previously existing patents should be unenforceable or weaker during a pandemic to improve society's ability to mobilize against the virus.

Sendhil Mullainathan and Richard Thaler make this argument, citing a case in which producers of 3-D-printed valves needed to replace ventilator parts received a threat of a lawsuit. Meanwhile, an attempt by Labrador Diagnostics LLC to enforce two patents in its portfolio against a maker of COVID-19 testing kits received widespread criticism, and the patent holder ultimately backed down. Separately, Israel has approved importation of a generic alternative to an HIV drug thought possibly helpful against COVID-19, even though the drug remains under patent in Israel until 2024.

The question with greater stakes is what happens if a patented treatment proves to be effective against COVID-19. The maker of remdesivir received orphan drug status for the drug (and thus exclusivity and other benefits) on the ground that it met the statutory definition of a rare disease, based on the number of people currently suffering from COVID-19 in the United States. After criticism, Gilead declined the "rare disease" status. Remdesivir remains under patent, and Gilead will presumably defend its patent rights more aggressively. But will Gilead be allowed to do so? One might think that if the treatment proves successful, Gilead would be among the most valuable companies in the world. Surely, one might think, it would be able to earn a trillion dollars, a fraction of what is at stake in dollars and lives in the United States alone.  But Gilead's market capitalization has risen only around $10 billion since the beginning of December. Perhaps this reflects skepticism about the drug's prospects, but not that much skepticism. It surely also reflects skepticism that Gilead will be able to price it aggressively. Analysts seem to anticipate a price target of only around $260, a bargain if the drug is really a life-saver.

The argument for allowing robust patent protection is mostly the same as the argument for patent protection generally: Patents encourage innovation. If the rule is that patents are unenforceable when they are most needed, then there will be reduced incentives to create inventions that may be especially needed in some future emergency. When an inventor is considering developing a ventilator part, a diagnostic test, or a treatment, we would like the inventor to consider the full social benefits of the invention, not just the social benefits to be accrued in ordinary times.

Here are some counterarguments, in my view none sufficiently powerful:

Unforeseeability. If the demand for an invention is entirely unforeseeable, then inventors will not have taken that demand into account in deciding whether to invent in the first place. Thus, patent revenues are a windfall, and society would be better off not enforcing the patent rights. A pandemic, one might argue, is unforeseeable. But we know that pandemics are not unforeseeable. Even though remdesivir failed against ebola, Gilead knew that it might work against some later coronavirus, and that might well have factored into its development decisions. Certainly as to drugs for medical treatments, this argument seems especially weak. What about patents on surgical masks or other medical tools? Sure, it's doubtful that the patentees explicitly took into account the possibility of a pandemic, but a rule that limits patents to explicitly foreseen uses might well lead patentees to expect less revenue. In patent law, inventions are patentable even if they are discovered serendipitously, in part because inventors expect that R&D will sometimes lead to serendipitous discoveries. The same argument applies as to serendipitous uses. Inventors may not know exactly what their inventions will be used for, but they recognize that sometimes they might receive revenue for uses of their invention that they did not precisely anticipate, and the possibility of such uses increases incentives to invent.

Speculative patents. Sometimes patents cover inventions that will not be useful until some later time, when some complementary technology arrives. John Duffy and I argued that such "speculative patents" should be patentable only if they meaningfully accelerate the arrival of technologies. For example, even if I develop a nonobvious idea for using a time-traveling Delorean in some clever way, I shouldn't be able to obtain a patent in the hope that a flux capacitor is invented, unless I meaningfully accelerate either the invention of time travel or at least my application of time travel. At least, the invention should not be counted as nonobvious on the ground that time travel seems fanciful, if my invention is simply free-riding on the future invention of time travel. Returning to pandemics, suppose that a drug company could quickly and cheaply invent many antiviral drugs that might be useful against future pandemics, depending on what proteins might turn out to be important in the pandemic. If the drug would be nonobvious after the pandemic comes (because any person having ordinary skill in the art could create it), then it should be nonobvious if the drug is developed earlier. Indeed, one might argue, contrary to existing law, that nonobviousness should be measured as of the time when an invention is first useful on the assumption that the invention hadn't been made, rather than as of the time of invention. But there is little reason to think that remdesivir fits this argument.

Bad patents. Some of the criticism of Labrador Diagnostics's aborted enforcement effort was based on the ground that the company is a "patent troll" and that its patents were derived from work with now-discredited Theranos. But nonpracticing entities at least sometimes engage in useful R&D that the patent system should reward, and even a company that perpetuated frauds may have legitimate intellectual property. If we should be tougher on nonpracticing entities or if we should have more exacting requirements of utility, that should be true whether there is a pandemic or not. It is doubtful that the category of "inventions for pandemics" is so much more susceptible to bad patents that it makes sense to have a special rule making such patents unenforceable.

Urgency. In ordinary times, one might have leisurely discussions about licensing patents. But we might not want manufacturers to spend, say, a month or two clearing all intellectual property issues before starting manufacturing, because a pandemic demands immediate action. This seems to me a reasonable argument as to whether an injunction should be granted against production, and indeed, under the fourth factor of the eBay v. MercExchange test, one can make a strong argument that the "public interest" argues against both temporary and permanent injunctions. But that does not explain why the patentee should be unable to obtain a damages remedy. The argument might be that people will be unwilling to produce valuable goods when they don't know what their liability eventually will be, but of course they do so all the time. Moreover, if small-scale producers are worried about liability, they could insist on contracts that indemnify them for intellectual property violations. If inventions are genuinely life-saving, purchasers like hospitals should be willing to take on such risk (and, if not, we may have a problem with the incentives of hospitals rather than a problem with IP).

Maximizing production. We will, of course, have more production if IP rights are suppressed than we otherwise would. And, as I have emphasized previously, generating more production of life-saving medical products may be the single most important policy goal right now (and unfortunately is largely unaddressed in the $2 trillion spending package). But we would also might have better emergency healthcare during this pandemic if states were allowed to commandeer without compensation hotels for housing healthcare professionals and other facilities for building hospitals. Yet we generally assume that even in times of need, healthcare providers should pay for what they consume. That's true even for goods with low marginal cost; electricity may be mostly fixed costs, but no one says that hospitals should pay less for electricity during times of emergency. If the justification for patents is sound, healthcare providers should be required to pay for the intellectual property they use.

Redistribution. What likely troubles people most about the possibility of strong patent protection for remdesivir or other COVID-19 treatment is that only the relatively rich may be able to afford it. Even though we accept that the wealthy have more purchasing power than the power, we may resist disparities when it comes to purchases essential to life itself. Such arguments, however, apply to all critical healthcare. If these arguments are sound, then the government should pay for health care that it believes is essential, at least for the poor, maybe even for the poor of other countries. Perhaps the government should take patents with eminent domain, paying to the companies what they otherwise would have received from private exploitation. But requiring redistribution from inventors to the poor displaces the government's responsibility and reduces incentives to invent.

Time inconsistency. We often assume that the correct policy, in patent law and elsewhere, is the one that would be chosen ex ante. A policy is time inconsistent where the best policy ex ante will differ from the best policy ex post. A common suggestion for monetary policy is that the government should tie its policymakers' hands ex ante to prevent the policymakers from engineering inflation ex post. Similarly, in patent law, if all of the above is correct, we should create rules that make clear that patents are fully enforceable in future pandemics. At the same time, though, the time inconsistency argument implies that when we have failed to tie policymakers' hands ex ante, and a different policy is preferable ex post, we should adopt the policy that maximizes social welfare ex post. Thus, one might argue, if the stakes of a pandemic are sufficiently high and patent law is vague as to whether patents are enforceable in pandemics, we should do what is best ex post (suppress patent rights). But that argument has two problems. First, this violates a norm in patent culture that we should conceive of the system from the ex ante perspective. This violation will lead to expectations of further cheating off the ex ante optimum in the future. Second, there is no vagueness in patent law here. There is only outrage, misplaced at least as to valid patents.

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  1. I think patents should be an extent.

    Let’s say, for example, China developed and patented a medicine which cured COVID-19. They then refused to sell the medicine to the US patient base…at any price.

    The US government would and should be able to manufacture the medicine, despite the patent.

  2. “But will Gilead be allowed to do so?”

    No. Either the government will seize the patent and litigate it later or public opinion would force them to back off.

    Its a panic, no law survives a big enough mob.

  3. A modest proposal: Patent the virus, and also recognize it as a legal person and give it rights of publicity and depiction under California law. Then combine the residuals for each use of that annoying microscope image, false image claims against the worst of the apocalyptic press, and claims for infringement against any deep pockets that facilitated the reproduction in different hosts, and then use that fund to pay the patent price of the lifesaving medication that keeps many thousands of people from dying for lack of air.

    (Best to get the madcap satire in before the surge hits.)

    Mr. D.

  4. I believe a similar problem happened during WW I, 100 years ago, over the Wright Bros patent contest with Curtis, and it was solved by the government buying the patent.

    Why not just do that? Buy the damned things! If need be, by eminent domain. Isn’t that a good statist and constitutionalist solution?

  5. Were I the judge in this controversy, I would use yet another analogy (h/t David Friedman): Negotiating with the company over the price of its drug now, when large numbers of lives may depend on getting it quickly, is like the owner of a ship sinking in a storm negotiating on the spot with a tugboat owner who can rescue his ship, but wants to profit opportunistically by doing so.

    The sensible solution seems to me the same as in that scenario: Gilead should be forced to provide the drug to all affected by the emergency, but then the question of how much the government should pay them should go before a court, which will decide on a price that is fair to both sides.

  6. The speculative patent problem is related to one of the problems with software patents. There are lots of software patents that are obvious once a certain level of computer technology is invented. But since there’s a certain time at which the technology is invented, there’s going to be a first person to file the patent too.

  7. Sometimes patents cover inventions that will not be useful until some later time, when some complementary technology arrives.

    An invention that isn’t useful isn’t patentable.

  8. Patents are ultimately sometimes necessary evils. Restrictions contrary to the natural order of the free exchange and use of information. They are not good things in and of themselves but exist to benefit society and enterprise. They should be set aside the second they start to harm instead.

  9. The argument here is poorly made and it is based on an extreme belief if the rationality of markets. Although many objections are correctly identified, the rebuttal is consistently superficial.

    (1) Unforeseeability:

    The argument here is just the efficient markets hypothesis on steroids. Although applications of a patent based on future events (like a pandemic) are unforeseeable, somehow, as if through magic, the invisible hand takes this into account. This is foreseeable unforeseeability.

    Has the professor done an EMPIRICAL inquiry into how entities actually make investment decisions? Looked at the actual NPV calculations that pharmaceutical companies and other patent holders ACTUALLY use in making investment decisions? And been skeptical of those calculations (since pharmaceutical companies and other patent holders have a reason to engage in a certain amount of hype to attract investment, like anyone else). No?

    Instead, the so-called professor proceeds upon faith. Somehow, in some way, the current pandemic was “priced in” to investment decisions in a plausible manner, writing, without evidence that “the possibility of such uses increases incentives to invent.”

    BS. The burden is on YOU to prove that the unknown unknowns are properly taken into account. And the burden is on you to show that these “incentives to invest” (In what? Inventing, or gathering patents… these are separate but sometimes related activities) are more optimal. What about “over-incentivizing” such behavior? Surely, it is not optimal to allocate ALL of GDP to invention. So, presumably it is possible to “over-incentivize.” And, presumably, a bubble is possible in this market like any other.

    The professor deals with none of these OBVIOUS issues. Which makes him particularly unsuited to opine about patents, which are themselves supposed to be non-obvious. If this professor cannot understand obvious objections, how is he even qualified to opine on intellectual property law at all??? His analysis is entirely superficial.

    (2) Speculative patents

    The section on speculative patents is just the same issue as unforeseeability. What meaningful distinction has the professor made between “unforeseeable” rewards to patents and “speculative” patents. Bizarrely, after arguing in the previous section that “unforeseeable” rewards of patents ought to be honored, the professor contradicts himself saying that “speculative patents” (where the speculation is based on the unforeseeable development of a complementary technology, rather than, say an unforeseeable pandemic.) But, if the professor were CONSISTENT, there is no difference between the unforeseeable development of a complementary technology and the unforeseeable/speculative development of a pandemic. Both involves wild guesses about the future. If wild guesses about a pandemic should be rewarded, why not wild guesses about a complementary technology? Does not the “the possibility of such uses increases incentives to invent” argument apply here if it applies in the unforeseeable case?

    Of course it does! That our so-called professor does not recognize the contradiction in his own position and attempt to reconcile it is a basic intellectual failure.

    (3) Bad patents.

    Our so-called professor writes: “But non-practicing entities at least sometimes engage in useful R&D that the patent system should reward”

    Don’t tell me. Prove it! Give examples. Do something. But don’t just act like you can just allow this part of your argument to be assumed to be true. Trolls (which is the proper name for so-called non-practicing entities) can INCREASE THE COST of innovation by diverting engineering resources to a courtroom and to lawyers and expert witnesses rather to the development of technology. Basically, the ASSUMPTION here is that patent trolls are, on the whole, good, such that their marginal “contributions to innovation” ought to be rewarded and thus help sustain them.

    Also, regarding Thanos, isn’t this company a complete counterexample to the professors earlier “faith” in markets to act efficiently, implicit in his argument for (1) ? After all, investors diverted $700 million resources from a productive uses to Elizabeth Holmes based on nothing more than hype, when they theoretically had every incentive to be more intelligent and invest those resources in patents that might be useful in a pandemic. That the professor fails to recognize how the failure of the market to evaluate the Theranos business model properly (which was based on nothing more than hype) calls into question the claim that they should be rewarded for that which is “unforeseeable.” It turns out that these market actors aren’t actually good at predicting the future. Thus, any arguments that they ought to be rewarded for the “foreseeably unforeseeable” ought to be discounted as well.

    Of course, I don’t expect our professor to necessarily agree with me. But the complete failure to defend assumptions about the usefulness of incentivizing patent trolls or relate Theranos to the point about unforeseeability and investor investment behavior is just so bad as to be intellectually indefensible.

    (4) Urgency.

    The professor addressed this in the most ridiculous way possible, focusing on licensing. But what is OBVIOUSLY just as significant as licensing is being “well-positioned” to take advantage of a license, if it were granted. Patents create barriers not merely in using the licensed technology, but in developing the capacity to use licensed technology in the first place. This is CLEARLY an extremely significant issue when it comes to evaluating the utility of incentivizing patents on speculative technologies that would otherwise not be patented at all. After all, a company that is not well-positioned to take advantage of a license will not be able to move with the urgency we would like in a pandemic. How could our so-called professor miss this elementary issue???

    Maximizing production:

    The professors discussion of healthcare providers paying for hotel rooms is entirely UNRELATED to maximizing production. No one has EVER argued that healthcare providers would produce more if only they didn’t have to pay for their hotel rooms. In fact, this is simply has no significant EMPIRICAL impact on the marginal provision of healthcare. (The real constraint is getting more doctors and nurses trained, not housing the ones we have.) In OBVIOUS contrast, we can see much more directly how having to reward patent holders leads to an EMPIRICAL observable decrease in the quantity and quality of medical care provided. That our so-called professor came up with an example that is completely irrelevant to the real world is just sad.


    Ok, the label here is just inexcusable. Patent law itself redistributes (from society to patent holders). So, to say that not enforcing patent law is redistribution is a category error. It is, at best, re-redistribution, not redistribution. That our so-called professor fails to deal with the fact that the use of ideas is naturally non-rivalrous and that law is coercively being used to create a scarcity that would not otherwise exist in order to reward patent holders is inexcusable.

    There is a basic economic term for this scarcity, and that is deadweight cost. Poor and middle class people value patented goods at more than the marginal cost of production, but are deprived access to that good anyway. This deprivation benefits NO ONE, including the patent holder but is a consequence of the patent holders inability to engage in perfect price discrimination.

    Characterizing deadweight cost as “mere redistribution” implies that the patent holders rights are somehow “natural” and that when goods are provided to people who value that good at more than the marginal cost of production that this is “unnatural.” If we feel bad for the poor and the middle class who are thus unable to access the healthcare they need, the government should “subsidize” their access. What this FAILS to recognize is that the patent right itself is the thing that is “unnatural” and the patent right itself is actually a subsidy. One speculatively designed to increase innovation (with much waste and in a ham-handed manner).

    The only redeeming quality of this section is the mention of using eminent domain to extinguish patent rights, since this is a valid partial solution to the deadweight loss problem (which goes unnamed). But on the unredeeming side, the professor fails to mention the possibility of using a reward system instead of the patent system. Also, if eminent domain is used, what price should be paid? The price during the pandemic or the price pre-pandemic? Based on the professors ex ante argument, the price that should be paid is the pre-pandemic price, since we should not compensate investors for their ex-post expectations, but only their rational ex ante expectations. The failure to address the price to be paid is a major flaw in this blog post, because based on the reasoning in section (1) the better price would be based on ex-post expectations (because there is an assumed speculative ex-ante reliance) but based on (7) the principle should be ex-ante expectations. A major flaw (and there are too many to count) in this analysis is thinking that investors should “have it both ways” and be rewarded based on ex post expectations, but only be limited by ex ante expectations/knowledge).

    (7) Time inconsistency.

    This is the only somewhat useful paragraph in this otherwise largely useless blog post. But as I explained above, the idea that investors have a valid ex ante expectation of a possible pandemic is implausible. At the end of the day, our so-called professor is REALLY arguing that inventors should be rewarded for their newly developed ex post expectations (because, implausibly – under a false efficient markets hypothesis type assumption where clear market failures like Theranos should not exist) they somehow anticipated and gambled on that ex post expectation. So, they should get their cake, and eat it too.

    On the contrary, people are individually RIGHT to be outraged by patent holder price gouging in a time of national emergency. (After all, if an individual themselves will endure an enhanced risk of death or serious injury now due to lack of production problems caused by patents, whether such outrage is somehow collectively socially non-optimal, it is still an individually optimal and thus individually rational behavior to be outraged by the threat in front of them. Also, it is perfectly predictable that people would behave in this manner.)

    Meanwhile, our “all-knowing” hypothetical investors who anticipated a pandemic, as rational beings, should ALSO have anticipated such individually rational (and entirely predictable ex ante) outrage would limit their returns in that case and curtailed their investments accordingly. So, if investors are as smart as the professor implicitly theorizes, then not allowing them to gouge now is what is consistent with their rationally formed ex ante expectations and allowing them to gouge would only provide them with a windfall.

    If we wanted to maximize future investments in innovation, providing such a windfall is not an efficient. Instead, those resources should be used to reward FUTURE innovation exclusively. Rational individual outrage at price gouging in times of pandemics, after all, isn’t something that a rational investor would fail to recognize and account for.

    Overall, this blog post is nothing more than apology for patent holder price gouging in a time of national emergency. Maybe that explains its bad quality.

    1. Thank you for your comments. Tone aside, you make some good points. I agree that there are difficult empirical questions about the degree to which people will invest more in inventions that will be particularly useful in emergencies that may occur with low probability. Probably not much if they expect not to be able to benefit in the event of an emergency, but perhaps they would if they anticipated being able to earn money during the emergency. An analogous question is why businesses didn’t stockpile goods like masks before the emergency in the hope that they might be able to sell them at high prices in the event of an emergency; I think that the answer is that stockpiling will not occur because stockpilers anticipate being unable to charge market price. And so we’re left with our inadequate national stockpile.
      Regarding eminent domain and patent rewards, I agree completely (and have written extensively on the topic).

  10. One option for an emergency is an implied licensing procedure. Whoever wants to can make it, but the patent holder gets royalties. Perhaps there could be a law specifying there procedure and royalties in advance. In the absence of such a rule, the courts could determine a fair amount after the fact, with no punitive or other “punishment” type damages. (That is, in an emergency other parties have a right to make it, with only the amount royalties at issue.)

  11. I also agree with David Walker that markets are notoriously inefficient and unreliable at pricing the risk of rare future events. As I’ve said many times on this forum, our ability to predict the future is much less reliable, and we can have much less confidence in our predictions, than our subjective beliefs (which often make us feel very confident) would tell us.

    I think this fact has a number of implications. One of them is a general conservativism. Laws, especially ones that have been part of a society for a long time, often involve predictions of future consequences and prophylactics for circumstances a particular generation doesn’t currently see. Because of this, judges should be less quick to claim that they are irrational because it disagrees with their own perceptions and their own predictions of the future.

    A second is recognizing that markets are terribly inefficient at preparing for rare events. Left to the markets, the firm that sets aside extra capacity for the future – to innovate as well as to prepare for disaster – will be beaten into oblivion by the firm that lives and is maximally efficient only for today, and will go under long before the disaster ever occurs Or the new thing is ever perfected. Indeed, it is only because markets aren’t efficient in a classical sense that disaster preparedness, or innovation, ever happens.

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