About Richard Epstein

Known to students at the University of Chicago and NYU law schools as “the libertarian,” Richard Epstein has established himself as an expert in constitutional law, contracts, corporate law, real estate law, torts, labor law—and even Roman law. He is reputed to be more knowledgeable about Justinian’s Code than anyone since the Emperor Justinian himself. The Peter and Kirsten Bedford senior fellow at the Hoover Institution, Richard Epstein is the author of several books including, The Case Against the Employee Free Choice Act.

Guns, Abortion, and the Clashes Yet to Come

 

Last week, the Supreme Court delivered two blockbuster opinions. The first, New York State Rifle & Pistol Association, Inc. v. Bruen, struck down a New York state law provision that required any person who wished to carry a concealed handgun in public to first demonstrate to a public official that they had “proper cause” to do so for self-defense. In practice, this meant that applicants had to show that they faced a special risk above and beyond the ordinary risks that everyone runs in society. The second, Dobbs v. Jackson Women’s Health Organization, put an end to the forty-nine-year period in which Roe v. Wade (1973) guaranteed a constitutional right to abortion.

The response to both these decisions was strong and emphatic—from both sides. However, because the six conservative justices stuck together for both decisions, the left howled far louder than the right. Sadly, advocates on both sides treated their positions as self-evident truths, ignoring difficult conceptual and administrative challenges. Thus, in Dobbs, there was no middle ground. Forces on the right took great pleasure in concluding that Dobbs is a “triumph of democracy, constitutionalism, and courage,” and that the court rightly rejected living constitutionalism and returned the question of abortion rights to the people. The liberal dissenters asked not whether the people had the right to regulate abortion but rather whether each woman had the right to decide for herself whether to have a baby. By throwing the issue back into the hands of legislatures, the Supreme Court gave only modest comfort to many states, such as Illinois, that decided to protect Roe, while others—like Indiana, Wisconsin, Missouri, and Iowa—sought to reinstate restrictions that could turn the clock back beyond the bad old days before Roe.

Bruen reversed those roles: progressives thought legislative discretion should control, while conservatives took the view that the Second Amendment gives the right to bear firearms strong constitutional protection.

California’s Reparations Overreach

 

With Assembly Bill 3121, passed in 2020, the California state legislature created a task force whose purpose is to “study and develop reparation programs for African-Americans.” On June 1, 2022, that task force issued its lengthy interim report, with an executive summary, which together will divide rather than inform the highly fraught public at large. What is desperately needed today are programs of market liberalization that will raise the welfare of all groups, without seeking to play one off against the other.

But the task force has no such general recommendations. Instead, it chooses to examine complex historical events that took place from the onset of slavery in the United States until the present day. That untidy inquiry should mix together developments of both cruelty and heroism. Had the task force proceeded in a more responsible manner, it would have started with the proposition that many groups—racial and otherwise—have been mistreated and can make, and have made, claims for reparations. And it also should have explicitly acknowledged that at no point in our nation’s history have any such expansive reparations programs been enacted.

Misunderstanding Korematsu

Can Artistic Freedom Survive State Coercion?

 

Lorie Smith, proprietor of 303 Creative.

Within the classical liberal tradition, individuals are generally free to do as they please subject to three important constraints: force, fraud, and monopoly. Properly understood, the combination of these constraints works to maximize overall social welfare, not as some abstract good wholly disconnected from ordinary human beings, but as the sum of individual satisfactions in a world of scarce resources where the desires of one person clash with the desires of others. But the success of this social mission depends on giving sound definitions to each of the major constraints on individual liberty. In 303 Creative v. Elenis, the Supreme Court will have the chance to rectify a misguided decision in the Tenth Circuit that has utterly misconstrued all three of these essential pillars. I have signed an amicus brief, along with other law and economics scholars, which urges the high court to overturn the Tenth Circuit.

Lorie Smith, the sole proprietor of 303 Creative, is one of literally hundreds of website designers in her local area. She is a devout Christian who is prepared to serve all individuals, regardless of “race, creed, sexual orientation, or gender,” with one exception:  she will not design wedding websites tailored to gay couples or promote other messages that conflict with her religious beliefs. In this case, she is seeking, pre-emptively, protection from possible sanctions, including fines and an Orwellian re-education regime, that could be imposed on her under the Colorado Anti-Discrimination Act (CADA).

FERC’s Unwise Regulatory Power Play

 

The news is full of stories that the next summer heat wave is expected to cause brownouts and blackouts throughout the nation. Running a grid is complex business, for the relevant regulators must safely balance the distribution of power across the nation to meet rapid shifts in demand over different locations and times. The first line of attack for the energy crisis is increasing the capacity of the grid, which requires pumping more energy into the system, chiefly from fossil fuels. On energy production, a waffly Biden administration resorts to a combination of explicit bans and de facto slowdowns. The president’s many decisions to either shut down or slow down the construction of new pipelines intensify shortages, which compounds the overall danger. At the same time, the decline in Russian natural gas supplies puts increased pressure on world energy supplies, which has boosted oil prices to well over $100 per barrel.

Equally important, actions that take place inside the electrical grid must also be prudently carried out. Much of the government’s power over the grid is vested in FERC, the Federal Energy Regulatory Commission, which has taken over many of the functions of the older Federal Power Commission, including its traditional ratemaking functions for public utilities. Right now, FERC has, by a notice of proposed rulemaking (NOPR), put up for public comment an exceptionally complicated proposal from early May 2022 that travels under the impressive title “Building for the Future Through Electric Regional Transmission Planning and Cost Allocation and Generator Interconnection,” which stresses how activities that take place within one portion of the grid necessarily impact activities elsewhere on the grid. This NOPR proposes a novel way to achieve that end.

Thus paragraph 3 imposes “long-term regional transmission planning” needed to allow FERC to decide whether the proposed course of action by any regulated party can “meet transmission needs driven by changes in the resource mix and demand.” As part of that requirement, the commands in paragraph 4 “require that public utility transmission providers in each transmission planning region seek the agreement of relevant state entities” on all the relevant cost allocation programs that are involved.

Stopping the Runaway SEC

 

This past week, the Fifth Circuit Court of Appeals issued a long-overdue blockbuster opinion in Jarkesy v. SEC (2022), which attacks the very foundations of the modern administrative state of which I have long been critical. At issue in that case was a challenge to what is now standard procedure under the 2010 Dodd-Frank Act which allows, as Mario Loyola noted, the United States Securities and Exchange Commission (SEC) to act as “prosecutor, judge, and jury” in major cases that come before it. Why? Because the SEC commissioners: (1) formulate the charges; (2) then appoint an administrative judge on an ad hoc basis to hear the charges, inside the SEC and under SEC procedures; and (3) finally, execute and enforce any punishment. The SEC does this all without any judicial oversight until the appeal stage. This process is designed to exhaust defendants faced with heavy charges, which happened as recently as 2018 in Lucia v. SEC. There, the accused won the right to a new trial before another stacked panel inside the SEC after years of litigation, which, exhausted from the ordeal, he settled on unfavorable terms two years later.

George Jarkesy also faces serious charges and onerous sanctions. The SEC alleged that Jarkesy misrepresented who served as prime broker and auditor, misstated two hedge funds’ “investment parameters and safeguards,” and overvalued firm assets in order to inflate his own fees. The serious sanctions included a civil penalty of $300,000, disgorgement of $685,000 in ill-gotten gains, and a set of prohibitions against engaging in certain industry activities, including associating with brokers, dealers, and advisers, offering penny stocks, and serving as a director or investment adviser to any securities-related firms.

To my mind, the correct response is to hold that the use of these SEC procedures was a flagrant violation of the Due Process Clause of the Fifth Amendment, which reads: “No person shall . . . be deprived of life, liberty, or property, without due process of law.” That clause guards against all abuses by the United States, including all legislative, executive, judicial, and administrative procedures by or in the SEC. The level of protection “due” in litigated cases must ensure that the tribunal be free not only of bias but also of the appearance of bias. Those minimal conditions cannot be satisfied when the SEC flouts the principle of the separation of powers by giving the agency full run of the show.

Seeking a Way Out of Redistricting Chaos

 

New York’s congressional politics have been thrown into chaos by a recent decision of Patrick McAllister, a Republican trial judge in an upstate New York state court. His new claim to fame is that he approved a new congressional districting map in the intensely litigated reapportionment case of Harkenrider v. Hochul. New York needed a new district map because the state lost one congressional seat in the 2020 census and experienced population shifts that resulted in malapportionment, since the previous map had been drawn in 2012.

In the game of musical chairs that followed the loss of that seat, Governor Kathy Hochul signed into law in February 2022 an avowedly partisan map that left the Democrats with majorities in twenty-two of New York’s twenty-six congressional districts. The New York State Court of Appeals (the state’s highest) frowned on the map’s blatantly partisan nature, and kicked the matter back down to McAllister. The judge promptly enlisted Jonathan Cervas, a postdoctoral fellow at Carnegie Mellon University with expertise in map drawing, to prepare the new map. Cervas took testimony from all interest groups. He responded to criticisms, for example, that questioned the wisdom of breaking up a large black community in Brooklyn into two separate districts—a move that had been savagely attacked by Representative Hakeem Jeffries of Brooklyn as “enough to make Jim Crow blush.”

McAllister approved Cervas’s map and immediately postponed the congressional primaries from June 28, 2022, to August 23, a move promptly upheld in federal district court. The final approval of the map set off rapid political maneuvers, as the new district lines departed sufficiently from the old ones to turn former allies into instant combatants. The highest-profile of these new contests pits Congressman Jerry Nadler, who has long represented Manhattan’s West Side, against Congresswoman Carolyn Maloney, who has long controlled the East Side. In a separate struggle fraught with racial overtones, Congressman Sean Patrick Maloney did not have to leave his Cold Spring home in the old 18th District to run again the black progressive Mondaire Jones in the new 17th District. But Jones instead chose to seek re-election in the new 10th District—which runs from Greenwich Village in Manhattan to the strong Orthodox Jewish community of Borough Park in Brooklyn. So now it appears that Sean Maloney will have to run against progressive state senator Alessandra Biaggi, who plans to move to the new 17th District in opposition to Maloney, whom she brands “a corporate, selfish Democrat.”

All the Wrong Moves on Energy Markets

 

In a world of sane energy policy, the following three precepts would take pride of place: (1) the forces of supply and demand would allocate scarce energy resources to their best possible use; (2) constant competitive pressures should lead energy suppliers to reduce their costs of extraction, refinement, and sales, just as it should lead purchasers to economize on the use of fuels; and (3) a set of careful taxes and restrictions should be imposed proportionate to measurable externalities, and only where the benefits from government imposition exceeded the costs of running the regulatory system. The combination of market and regulatory measures is not perfect, but it should lead to steady improvements, as the price system should prove resilient enough to absorb the full range of exogenous shocks, whether from natural events like storms and volcanoes or from political sources like the stress of the Russian invasion of Ukraine.

By every measure, the energy market is fraught with vulnerabilities, virtually all of which stem from high levels of government interference in the production, distribution, and sale of goods. The source of the distress is the unannounced, but readily apparent, decision of the Biden administration to dethrone fossil fuels from their central position in energy markets. There is no single tool used to achieve this end, and certainly no explicit acknowledgment of the overall agenda. But the dire consequences of these policy changes become more evident by the day. Multiple reports point to systematic shortages in diesel fuel nationally, but particularly in the Northeast, where refining capacity is down by half from 2009. The national diesel fuel shortage will start this summer and continue indefinitely. Right now, the electricity industry also faces planned and unplanned blackouts because of a decline in energy sources from nuclear and coal, which is placing excessive dependence on unreliable wind and solar sources. Gasoline prices have already spiked to record levels, most recently at $4.43 per gallon and climbing, driving a core inflation rate over 6 percent, while the energy inflation rate remains over 30 percent per year.

In the face of this energy crisis, the one imperative is to increase the supply of energy to both meet the post-COVID jump in demand and fill the supply gap left by the much-needed strategic effort to shut down Russian natural gas sales to the West.  However, the Biden administration has not taken any steps to bring more US energy online in the short run.

Roe’s Awkward Departure

 

Politico rocked the nation with its recent exclusive and explosive publication of a mysteriously leaked copy of Justice Samuel Alito’s February 10, 2022, draft majority opinion in Dobbs v. Jackson Women’s Health Organization—the apparent decision by at least five Supreme Court Justices to uphold Mississippi’s law banning elective abortions after the fifteenth week of pregnancy. That opinion makes it likely that the Supreme Court will overturn Roe v. Wade, which crafted a constitutional right to an abortion forty-nine years ago in 1973. The defenders of the Dobbs opinion regard it as a triumph of originalism worthy of “three very enthusiastic cheers.” In sharp contrast, the progressive critics of the decision go to exquisite lengths to express their complete and utter contempt for a decision that according to the League of Women’s Voters “not only strips women and pregnant people of their personal autonomy but opens the door to erode more fundamental rights,” leading “to collective shock and outrage” by pro-choice advocates.

Clearly, with stakes this high it is important to set aside both exultation and despair in order to analyze the strengths and weaknesses of the Alito opinion. On the positive side, Alito’s opinion adopts a tone of workmanlike seriousness that is quite circumspect about overruling past precedents, and explicitly disclaims any intention to overrule any other precedent on either women’s or LBGTQ rights. Instead, it treats abortion  as “a unique act” that does not impact “in any way” Lawrence v. Texas (2003), dealing with private consensual sexual behavior, or Obergefell v. Hodges (2015), constitutionally protecting same-sex marriage. Instead, it articulates a two-stage argument that dismantles the establishment in Roe v. Wade and Planned Parenthood of Pennsylvania v. Casey of a constitutional right to abortion. The first part notes that abortion is not explicitly protected in the Constitution. The second part contends that Roe cannot be defended on some implied “substantive due process” grounds, because it does not meet the standard set out in the late Chief Justice William Rehnquist’s decision in Washington v. Glucksberg (1997), which refused to recognize any right to assisted suicide, namely that “any such right must be ‘deeply rooted in this Nation’s history and tradition’ . . . and ‘implicit in the concept of ordered liberty.’ ”

As Alito exhaustively documents, that standard cannot be met given the impressive array of common law and statutory criminal prohibitions of abortion in effect before the adoption of the Fourteenth Amendment in 1868, at the time of its adoption in 1868, or at any time thereafter. Yet at no point does Alito find any constitutional prohibition against the decriminalization of abortion. Instead, his chief complaint is that Roe “short-circuited the democratic process” that would otherwise lead to some political resolution in the same state legislatures that controlled the law on abortion before Roe. Recall that at the time of Roe, states had dramatically different abortion laws, from Texas’ very restrictive law (at issue in Roe) to New York’s 1970 law, which legalized abortion up through twenty-four weeks of pregnancy and whenever the mother’s life was in danger. Alito then shows that Roe’s legal reasoning “was exceedingly weak,” especially in light of its internal confusions, including its inability to justify different constitutional rules for each of the three trimesters of a pregnancy. Alito leveled the same criticism at Planned Parenthood of Southeastern Pa. v. Casey (1992), which affirmed Roe’s establishment of a right to abortion whenever state regulations impose an “undue burden on that right.” Hence, he struck down an opinion that could not be justified by the mere passage of time, and that had never gained political legitimacy during the past forty-nine years.

If Musk Takes Over Twitter, What Next?

 

The universe of social media is now seeking to understand Elon Musk’s audacious bid to acquire all the shares of Twitter at a price of $54.20—$44 billion in total—that was initially accepted by the Twitter board of directors on April 25. Many regulatory and business hurdles still lurk between this initial agreement and the completed purchase. And the low break-up fee of $1 billion is seen as a sign that the transaction may yet founder.

The uncertainty over the deal’s future has not stopped, however, the nonstop speculation of what it will mean for the future of social media. By and large, these assessments are divided along sharp political lines. Right-wing stalwarts like Ben Shapiro chortle that the new deal promises to usher in a new age of Internet freedom by reforming how Twitter conducts itself, which in turn will lead to greater transparency. Musk has called himself a free speech “absolutist” who believes that free speech “is the bedrock of a functional democracy, and Twitter is the digital town square where matters vital to the future of humanity are debated.” That optimism has not—to put it mildly—been shared by the political left, which has already outdone itself by denouncing him in an NBC news report—ironically relying on overheated tweets—as “a white nationalist-sympathizingtax-dodginganti-unionanti-free speech, ‘dystopian neocolonialist’ plutocrat tainted by his family’s background in apartheid South Africa, where Musk was born in 1971.”

There is little doubt that part of this fear is based on the simple view that Musk not only contributes to a greener environment, but—gasp­—“is a libertarian edgelord billionaire” who does not toe the progressive line, a climate activist told NBC. This pending takeover has prompted prominent progressive thinkers to forsake their Twitter accounts to protest what looks, at least to them, more like a political coup than a corporate takeover.

A Plague of Billionaires?

 

The United States is awash in crises. The crime rate is surging; inflation continues to rise; COVID-19 is still not tamed; curricular reform is a contentious issue at all levels of education; global warming continues to be the source of much anxiety; the antitrust laws are under strong attack; social media continues to be a flashpoint. But for the readers of the New York Times Magazine, on April 10, 2022—devoted largely to The Money Issue—attacking the proliferation of new billionaires, who now total 735 (or is it 927?) has become the centerpiece of their campaign to reduce income and wealth inequality.

The alarm bells of this trend have been rung by Willy Staley, one of its staff writers, whose lead delivers this supposed knockout punch: “Their numbers are out of control—and the rest of us are subject to their whims.” This makes great copy, but horrific economics. Just why is the increased number of billionaires a bad thing? Theirs is not a coming crime wave in which each of us are put at risk for the loss of our lives or property by a new band of predators. Indeed, the exact opposite is true. Although none of the Times’s writers cares to mention the point, each of these billionaires (or their direct ancestors) created the wealth by selling goods and services to people, which at a minimum had a total value far greater to those people than the fraction of the gain that the billionaires were able to garner for themselves.

These billionaires had to form businesses and share the gains so created with their many partners, employees, suppliers, and customers who fill essential roles in the chain of production and consumption. Perhaps the most important component in this calculation is the consumer surplus—i.e., the maximum price that consumers are prepared to pay for given goods and services, less their market price—a number that is often huge relative to the fraction of the gains that the billionaires retain. As the future Nobel Prize winner William Nordhaus noted, the retained earnings are far lower than commonly supposed, such that since World War II, consumers have collected 98 percent of the social gain from innovation.

Laboring Under a Delusion

 

In its most recent issue, the New Yorker gloated that in “one of the biggest labor victories since the nineteen-thirties,” the Amazon workers at a Staten Island warehouse voted—2,654 for and 2,131 against—to form a union. The union victory was organized by the Amazon Labor Union (ALU), a grass-roots, home-grown operation that operated outside the traditional channels of organized labor, but with substantial material support and strategic advice from old-line unions. The vigorous union campaign highlighted worker grievances that included a demand for improved safety conditions in light of the COVID virus, higher wages, longer work breaks, better grievance procedures, and a shuttle bus connection to the Staten Island ferry. In the run-up to the election, two key union organizers were fired and one warned. All were black. Amazon claimed it was for violating social distancing rules. The workers claimed that it was an illegal effort to fire them for their organizing efforts. Because of the ALU’s success, further union-organizing campaigns at Amazon are now in the offing.

Union optimism about the ALU election should be tempered by the long litigation struggle that lies ahead. It is an open secret that many businesses that are generally liberal on social issues—think Howard Schultz, who has just returned as the head of Starbucks—are widely and correctly regarded as anti-union. This posture is taken for the simple reason that unions are bad for business—period. To the progressive mind, that anti-union posture is a high political sin. President Joe Biden has already cheered on the Amazon workers, saying, “Amazon, here we come.” But there are at least two major reasons to question the merit of his position.

At a theoretical level, the purpose of any sound system of labor law is to improve the overall productivity of the employment relationship, which includes the welfare of firm workers as one part of that calculation. But union elections are, at best, an imperfect way to achieve that objective. About 45 percent of the Amazon employees voted against the union, which means that the net overall gain for current workers is small indeed: the dissenting workers certainly have legitimate concerns. Why pay union dues, typically at 3 percent, that will eat into any future wage increases? Why encourage management-labor confrontations that will sever direct worker-employer relationships, which could price the Staten Island facility out of the market or could lead Amazon to divert some of its business to nonunion warehouses where costs are lower and profits are higher?

High Court to Referee California Food Fight

 

This past week, the Supreme Court agreed to hear an appeal in an important case that could determine the structure of American interstate markets for years to come. National Pork Producers Council v. Ross involves a constitutional challenge to Proposition 12, a 2018 California referendum that requires all pork products sold in the state be prepared in facilities meeting California standards of animal health and safety, no matter where they are raised. As the plaintiffs explain in their brief, virtually all of the pork products (some 99.8 percent) sold in California come from out of state. On the flip side, California represents 13 percent of the national consumer market for pork products.

The requirements imposed under Proposition 12 are much more stringent than those in place virtually anywhere else in the country and, in the view of many farmers, are injurious to the health of the sow. Nonetheless, California insists

farmers provide each sow with 24 square feet of usable floor space and largely prohibits the use of individual stalls, even during the critical period between weaning and confirmation of pregnancy, when sows recover from the stress of giving birth, are bred, and then wait for the embryos to attach themselves to the uterine wall.

SEC’s Climate Disclosure Scheme Is a Mess

 

The Securities and Exchange Commission (SEC), which recently flexed its muscles to expand regulations over private equity firms, is at it again. Only this time, the stakes are far higher: its tedious 506-page proposal for mandated disclosures relating to climate change will expose every major corporation in the United States to unending administrative meddling.

As with the private equity proposal, the new SEC initiative provoked a detailed and powerful response from SEC Commissioner Hester Peirce, who disputed virtually every assertion made by the three-member Democratic majority, headed by SEC Chairman Gary Gensler. Gensler claims that the new rules will allow for greater consistency and comparability of the anti-global-warming efforts of different companies. Peirce responds instead that the SEC diktat will force each company to make so many ad hoc factual assumptions that the new findings will be indigestible by the very investors whom it is said to inform and protect. The Democratic majority claims that expanded climate disclosures are always material to prudent investors, citing in support of its position the general remarks of BlackRock CEO Larry Fink, who insists that the threat of global warming requires a “Fundamental Reshaping of Finance.” Peirce responds that the definition of materiality extends only to cover information that private parties use to make investment decisions, but does not cover matters of general public affairs as defined by the ESG—environmental, social, and governance—movement, which often subordinates firm welfare to advance highly intertwined matters of environmental protection and social responsibility. She further insists that these marginal explorations fall outside the statutory authority of the SEC, which contrasts with the Democratic majority’s view that this vast initiative lies at the core of the SEC’s statutory mission.

On balance, Commissioner Peirce has the best of these arguments. But, at this time, I shall go off into a different direction to see whether, wholly apart from these technical legal issues, the entire exercise is worth the candle. On this score, what is so disconcerting about the SEC’s new initiative is how little attention it pays to the central questions that should be preconditions for adopting the novel program in the first place. Here, I can deal with only three of these issues. The first is whether the SEC has demonstrated that global warming is such an existential threat that this bold initiative is warranted. The second is whether the proposed initiative can curb the supposed adverse effects of global warming. And the third is, assuming that the initiative could in the abstract curb such purported effects, whether the proposed institutional design achieves that outcome.

Hands Off Private Equity

 

The Biden administration is engaged in a sustained effort to add layers of regulation to all portions of the economy. In some instances, these maneuvers take the form of direct commands, such as the ill-fated comprehensive vaccine mandate; in others, indirectly, by redoing the antitrust laws or the tax code. But, sometimes, his administration’s approach appears to take a softer line. The prominent example is by giving various corporate disclosure laws more teeth.

Disclosure has been the province of the Securities and Exchange Commission (SEC) from its inception in the New Deal era, where it was intended to be an antidote to securities fraud in the rough-and-tumble securities markets. Under the direction of the new chairman, Gary Gensler, the SEC, with its Democrat majority, is moving sharply toward using the disclosure banner to burden, indirectly, private equity markets with ever-larger amounts of direct regulation. As Republican SEC Commissioner Hester Peirce has noted, this novel approach represents “a sea change” in attitudes, and is designed to shackle the behavior of sophisticated investors in private equity markets by treating them like ordinary “retail investors.” This is plainly contrary to reality, as private equity investors are well protected, as Peirce notes, by an army of professional advisers, who have mastered all the nooks and crannies of complicated debt and equity markets.

To rebut Peirce’s claim, Gensler begins his plea for expanded regulation by noting the obvious that these funds are “growing in size, complexity, and number. These funds, including hedge funds, private equity funds, venture capital funds, and liquidity funds, currently have approximately $18 trillion in gross assets.” The factual predicate is indeed true, as the private equity markets have developed a rich set of tools to harness private capital. The ability to tailor different investment vehicles to different clienteles is not evidence of systematic breakdown, but proof positive that these firms have earned the trust of wealthy investors by posting a string of successes.

Vaccines and Liability

 

In late 2020, the Pfizer and Moderna mRNA vaccines were hailed as magic bullets against COVID-19. Some fifteen months later, vaccine advocates have nothing but good things to say about the current program. This perspective is reflected in the Centers for Disease Control and Prevention (CDC) “Myths and Facts about COVID-19 Vaccines” webpage, which gives the mRNA vaccine a clean bill of health in passages such as this one:

MYTH: All events reported to the Vaccine Adverse Event Reporting System (VAERS) are caused by vaccination.

FACT: Anyone can report events to VAERS, even if it is not clear whether a vaccine caused the problem. Because of this, VAERS data alone cannot determine if the reported adverse event was caused by a COVID-19 vaccination.

Passivity Is the Enemy of Security

 

Senseless wars often arise from the juxtaposition of perverted malice on one side and massive incompetence on the other. Vladimir Putin embodies the former. As such, he is all too eager to resort to an exaggerated form of rhetoric that reflects his state of mind. The old KGB type is unable to accept the dissolution of the Soviet Union back in 1991. He thus seeks every opportunity to engage not in domestic reform but in foreign adventurism. He knows full well that Russia is not under attack by the forces of Ukraine, let alone at risk of any military invasion. His beef is that Ukraine’s very existence as a flawed but free and democratic state on Russia’s border presents a terrifying contrast to a man who uses power as a means to oppress his neighbors as he oppresses his own people.

Regrettably, his political delusions are coupled with a tactical savvy that lets him outmaneuver opponents like Barack Obama, Donald Trump, and Joe Biden by taking steps large enough to matter, but small enough not to provoke a military response from the United States or its NATO allies. Thus in short order he backed a breakaway regime in Moldova; invaded Georgia on behalf of its Russian-speaking citizens in 2008; and annexed Crimea, a part of Ukraine occupied by pro-Russian separatists, in 2014.

Spurred on by Western passivity, Putin then set his eyes on Ukraine, offering the fig leaf of relieving Russian-speaking individuals in a state of duress. He then took aim at long-dead enemies in seeking the “demilitarization and denazification of Ukraine.” He spoke wildly of “genocide” in the Russian-speaking areas of Luhansk and Donetsk in eastern Ukraine which he has recognized as independent states. He then lambasted Ukrainian leaders by saying he would “press for bringing to justice those who have committed numerous bloody crimes against peaceful civilians, including Russian citizens”—the very crimes Putin has committed countless times since assuming power.

Halt the EPA’s Takeover of Energy Markets

 

Next week in West Virginia v. Environmental Protection Agency, an epic showdown will take place in the Supreme Court over the scope of the power that the EPA may wield under the Clean Air Act over the emissions of fossil fuels from stationary sources throughout the United States. At the core of this dispute is a 1970 statutory amendment, 42 U.S.C. § 7411(a), which defines the “standard of performance” applicable to all new construction of stationary sources of pollution as

a standard for emissions of air pollutants which reflects the degree of emission limitation achievable through the application of the best system of emission reduction [BSER] which (taking into account the cost of achieving such reduction and any nonair quality health and environmental impact and energy requirements) the Administrator determines has been adequately demonstrated.

On the one side, West Virginia, a state with abundant coal resources, leads a large coalition of Republican states, which argues, in line with historical practice, that BSER refers to the kind of equipment adjustments that can be made to a specific piece of equipment that is a source of emission, which would include filters and scrubbers that reduce the amount of air pollution. That position was incorporated in the 2019 Trump administration Affordable Clean Energy rule (ACE rule), which had retracted the far more expansive Clean Power Plan (CPP) promulgated in 2015 by the Obama administration. CPP had not only effectively imposed equipment changes, but in practice would have resulted in a federally mandated industrywide shift away from coal and other fossil sources to leverage the “already clearly emerging growth in clean energy innovation,” to secure nationwide reductions in greenhouse emissions.

Biden’s Pro-Union Gambit

 

President Biden has claimed that he has been “America’s most pro-union president ever,” and he took a major step toward making good on that dubious distinction in his executive order of February 4. In it, he announced strong steps to make sure that only firms that agree to hire union labor on jobs worth more than $35 million can land those contracts. The order, if and when implemented, is anticipated to cover $262 billion in federal contracts annually. As one might expect, the provision generated divided opinion, with Secretary of Labor Marty Walsh announcing his full-throated endorsement while construction firms have expressed their strong doubt about the proposal, which is bad as a matter of both law and economics.

There are two fatal flaws to his order. The first is that the executive order is in flat contradiction to the rules governing the formation of labor unions under the National Labor Relations Act (NLRA). The second is that the labor law defects are not cured by the general language of the Federal Property and Administrative Services Act of 1949, which at an abstract level is intended “to promote economy and efficiency.” Indeed, the entire mishmash is so far off base that employers and dissenting employees should be entitled to get a preliminary injunction so that the executive order never goes into effect at all.

Start with the key command of the executive order: each government agency “shall require every contractor or subcontractor engaged in construction on the project to agree, for that project, to negotiate or become a party to a project labor agreement with one or more appropriate labor organizations,” under a pre-hire agreement, that is, one that has to be negotiated prior to bidding. These contracts are supposed to contain safeguards against “strikes, lockouts, and similar job disruptions” and to “set forth effective, prompt, and mutually binding procedures” to resolve disputes.

Immigration Without Open Borders

 

Immigration is one of today’s hottest issues. Nations both large and small must define their approach to the movement into their territories of individuals who are not citizens by birth. On the one side are nations like Japan, which have historically tolerated virtually no permanent immigration. On the other side are nations that have for extended periods of time opened their borders to extensive immigration, often with great success, as was the American experience from about 1900 to the beginning of the First World War. There are many permutations that work, but open borders is not one of them. Expanding the categories of lawful immigrants is.

Understanding how these two propositions work together necessarily requires a robust account of why nations uniformly adopt exclusive territories in the first place. National borders are latecomers in the origin of the species. Individual families could never have survived on their own, but clans of closely related individuals could as hunter-gatherers, moving by necessity from place to place as natural resources were consumed. Long-term ownership of land—the precursor for national territories—arose only with the development of agriculture. The old maxim, only those who sow shall reap, is an early recognition of the principle. Agriculture requires a front-end investment to clear the land and to tend to the crops. That system would collapse if outsiders could harvest crops (perhaps before they were fully ripe) for themselves, leaving the planters with no returns for their extensive labor. Cultivation thus required exclusivity, as did the construction of other complementary long-term assets like homes, granaries, stores, and factories.

But how to secure these borders? No individual could do that alone, so communities had to form collective structures. Simple geometry makes it clear that it is far cheaper to build a single wall around the checkerboard of individual owners than it is to build a wall around each individual unit. City walls thus became an early form of common property, which the Romans called res sanctae, that could not be partitioned by any citizen. All were required to contribute to the upkeep and guarding of these walls to ensure that they would not be breached.

The Affirmative-Action Showdown

 

On January 24, 2022, the US Supreme Court granted certiorari in two blockbuster cases dealing with affirmative action in higher education. Students for Fair Admissions Inc. (SFFA) v. President & Fellows of Harvard College involves a private institution covered by Title VI of the Civil Rights Act of 1964, which reads:

No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.

The companion case, SFFA v. University of North Carolina, involves a state institution subject to both Title VI and the Equal Protection Clause of the Fourteenth Amendment, the latter of which reads: “nor shall [any State] deny to any person within its jurisdiction the equal protection of the laws.” The great question underlying both cases is whether these two provisions require that race not be considered in the admission of students into higher education.