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.

Contributor Post Created with Sketch. Avoid the Pitfalls of Student Loan Forgiveness

 

One looming issue facing the incoming Biden administration is what to do with the $1.7 trillion in outstanding student loans, mostly held by the federal government. The most recent internal government analysis found that the United States will lose about $400 billion on its current portfolio of $1.37 trillion, a number likely to increase as the government continues to allocate about $100 billion per year in new student loans. Notably, that analysis did not include the roughly $150 billion in loans backed by the federal government but originated by private lenders.

By way of comparison, private lender losses on subprime loans in the residential lending market were about $535 billion during the 2008 crisis. The student loan and subprime mortgage crises share the same root cause: by statutory design, the government wished to expand both markets, such that loans were made with little or no examination of the borrowers’ creditworthiness. The meltdown of the residential home market arose because private lenders relied on the implicit federal loan guarantee. In the end, this practice pushed Fannie Mae and Freddie Mac, the holders of weak mortgages, over the edge, and ultimately resulted in the wipeout of all the private common and preferred shareholders of the two companies.

Fortunately, the absence of private shareholders ensures that the student loan crisis is not likely to generate such chilling collateral consequences. But the problem of borrower defaults will not go away soon, given that the federal government continues to pump billions of dollars each year into student loans. Unfortunately, this constant infusion of new capital into the lending market is causing increases in college tuition that outstrip inflation, imposing additional costs on individuals who do not take out student loans, and raising the overall cost of education above competitive rates.

Contributor Post Created with Sketch. An Overambitious Climate Plan for Biden

 

President-elect Joe Biden’s transition team has made it clear that climate change will be a top policy priority for his incoming administration. In crafting its policies, the Biden administration may heavily rely upon a blueprint already created by former Obama administration officials and environmental experts. Known as the Climate 21 Project, the exhaustive transition memo seeks “to hit the ground running and effectively prioritize [Biden’s] climate response from Day One,” after which it hopes to implement major institutional changes within the first hundred days of the Biden presidency. The project’s recommendations involve eleven executive branch agencies, including the Departments of Energy, Interior, and Transportation, as well as the Environmental Protection Agency and the National Oceanic & Atmospheric Administration, all of which are now actively involved in environmental policy. But the breadth of the Project 21 initiative is evident by its inclusion of State, Treasury, and Justice, too.

The project makes a grim assessment of the (unnamed) Trump administration. In speaking of the Environmental Protection Agency, it notes, without identifying any particulars, that it “has experienced a prolonged, systematic assault to disable effective capacities, demoralize its highly expert and dedicated staff, undercut its own legal authorities, and betray the EPA’s core mission to protect human health and the environment.” To reverse these trends, the Climate 21 Project is determined to shift the EPA’s focus “to climate change and clean energy,” an effort centered “around a deep decarbonization strategy.” The memo adds that the Interior Department must directly seize on “climate mitigation opportunities . . . in reducing greenhouse gas emissions from fossil resources owned by the public and tribes, boosting renewable energy production on public lands and waters, [and] enhancing carbon sequestration on public lands.”

The project’s seventeen-person steering committee consists of many Obama administration officials and environmental activists. Its co-chairs are Christy Goldfuss, formerly a managing director at the White House Council of Environmental Quality and now the head of Energy and Environmental Policy at the Center for American Progress, and Tim Profeta, Director of Duke University’s Nicholas Institute for Environmental Policy Solutions. The committee contains no mainstream Republicans or market-oriented economists. Its orientation is captured by the repeated use of the words “crisis” or crises,” which appear fifteen times in its report’s summary alone, usually joined with the word “climate.”

Contributor Post Created with Sketch. Religious Liberty Should Prevail

 

This past week in Fulton v. City of Philadelphia, the Supreme Court re-entered the dangerous minefield at the junction of religious liberty and anti-discrimination. The current dispute arose when Philadelphia’s Department of Human Services announced that it would no longer refer children to Catholic Social Services (CSS) for placement in foster care because CSS refused to consider same-sex couples as potential foster parents. CSS was, however, prepared to accept into its foster care all children regardless of their sexual orientation. After prolonged negotiations with the city failed, CSS sued. It seeks, in the words of the Third Circuit, “an order requiring the city to renew their contractual relationship while permitting it to turn away same-sex couples who wish to be foster parents.” The Third Circuit upheld the position of the city.

Resolving this delicate confrontation requires a return to first principles. Let’s start with the First Amendment’s protection of the free exercise of religion, as elaborated in Justice Antonin Scalia’s majority opinion in Employment Division v. Smith. Alfred Leo Smith, a drug guidance counselor, was denied unemployment benefits after being terminated for consuming peyote, a controlled substance, as part of a religious rite. The court held that his religious beliefs do not “excuse him from compliance with an otherwise valid law prohibiting conduct that the state is free to regulate.” The First Amendment did not require Oregon to accommodate Smith’s religious practice. Any neutral law of general applicability was acceptable, notwithstanding its disparate impact.

Notably, the word exercise is broad enough to cover not only Smith’s use of peyote but also CSS’s adoption policies. Accordingly, under no circumstances should Philadelphia be allowed to pass an ordinance that requires the Catholic Church to ordain women as priests, or to offer family aid services paid from its own funds to same-sex couples. The question in Fulton is whether CSS’s free exercise rights are forfeited when the city supplies public funds and matching services to CSS and the children it puts up for foster care.

Contributor Post Created with Sketch. A Flat Tax Is a Fair Tax

 

One of the most contentious political battles of the 2020 election cycle involves the Illinois “Fair Tax” ballot amendment. Supported politically (and financially) by Illinois’s billionaire governor, J. B. Pritzker, the amendment seeks to remove a provision in the Illinois constitution that requires all income taxes to be flat—that is, held at a constant rate regardless of the amount of income earned by any taxpayer. Currently, all income earned in Illinois is taxed at a 4.95 percent rate. The amendment requires a simple majority vote to be passed.

The amendment does not offer any specific progressive rate scale, but allows for increasing tax rates to be applied to successive tiers of a taxpayer’s income. Notably, the initial legislative plan on which the amendment is largely based—and which was proposed by the Democrat-controlled legislature—is a hybrid between a flat and progressive scheme. Most earners would be subject to progressive rate scales starting at 4.75 percent for the first $10,000 of income earned. Then. as income increases, so would the tax rate, maxing out at 7.85 percent. The legislative plan maintains a flat tax for the financial elite: Individuals reporting income above $750,000 and couples with joint incomes above $1,000,000 would pay a 7.95 percent rate from their first dollar.

This change in tax structure is held out as the fairest because it puts onto the rich the burden of shoring up Illinois’s rickety finances. The argument goes that the poorest 20 percent of the public are disproportionately exposed to high state, county, and local sales taxes, which total 10.25 percent in Chicago. This leads to a regressive system overall, where the poor pay an effective tax rate of 14.4 percent, while the top 1 percent pay only 7.4 percent. The obvious rejoinder is that, in total dollars, the rich pay far larger amounts in all taxes, much of which is used for transfer payments from which they do not benefit.

Contributor Post Created with Sketch. Untangling the Obamacare Challenge

 

During the hearings on Amy Coney Barrett’s nomination to the Supreme Court, one constant theme was whether her vote would jeopardize the Affordable Care Act. From the time of its inception, the ACA was a grievous social and economic mistake. Thereafter, Chief Justice John Roberts’s decision in NFIB v. Sebelius (2012) was a constitutional train wreck. Notwithstanding this sorry history, the most recent challenge to the ACA—raised in Texas v. California—is whether neutralizing the individual mandate under Section § 5000A(c) of the GOP’s Tax Cuts and Jobs Act of 2017 (TCJA) undoes the whole statute. This new challenge to the ACA is a sure constitutional loser, no matter what view one takes of the original legislation.

To set the stage for the current dispute, it is necessary to recapitulate the two key constitutional challenges to the ACA in NFIB v. Sebelius. The first was that the ACA exceeded the scope of the Commerce Clause, which gives Congress the power to “regulate commerce among the several states.” The second was that the individual mandate counts as a “tax” that falls within Congress’s power “to lay and collect taxes.”

In the ACA, the individual mandate was artfully disguised as a “shared responsibility payment” whereby young people who failed to enroll were made to pay a levy. As the chief justice noted in his NFIB opinion, the mandate was regarded at the time as an “essential” feature of the ACA structure: the mandate was necessary to keep young adults in the pool, who in turn provided the subsidies needed to keep the rates charged to older Americans affordable. It was presumed at the time that healthy, young adults otherwise would opt out of coverage in droves because their premiums would be far in excess of their collective benefits. The penalty/tax was designed to create a Catch-22, for now in principle young people stood to lose exactly the same amount by opting out of the ACA as by staying in.

Contributor Post Created with Sketch. Is There an Antitrust Crisis in Big Tech?

 

This past week, the Democratic majority in the House of Representatives released an exhaustive report, Investigation of Competition in Digital Markets, which purports to demonstrate a looming crisis in today’s digital markets, to which the strict application of the antitrust laws is the obvious antidote.

The report attributes a famous remark to Louis Brandeis: “We must make our choice. We may have democracy, or we may have wealth concentrated in the hands of a few, but we cannot have both.” To the Democrats, the combined $5 trillion market value of four major tech companies—Amazon, Apple, Facebook, and Google—offers ample confirmation of the increasing concentration of wealth and power in a few hands. The report believes that these four firms, each in its own way, raise serious antitrust concerns because of their ability to control access to markets, block innovation by smaller rivals, impose onerous conditions on potential customers and rivals, and skew the organization of trade and commerce in ways antithetical to the general welfare.

Although the report does not speak about breaking up these companies, it does offer a long list of questionable recommendations to address current antitrust problems. Those recommendations include limiting the ability of “certain dominant platforms” from operating in “adjacent lines of business,” erecting nondiscrimination requirements in order to prevent various forms of “self-preferencing,” a “presumptive prohibition of mergers and acquisitions by dominant platforms,” and “prohibitions on abuses of superior bargaining power.”

Contributor Post Created with Sketch. How Affirmative Action Falls Short

 

It has been fifty-six years since the passage of the Civil Rights Act of 1964, legislation that took aim at the systematic forms of legal segregation that had long dominated large segments of American life. It did not take an expert in implicit biases to see the corrupting influence that officially sanctioned racial segregation had on public life, nor did it take a subtle analysis to understand the importance of the Voting Rights Act of 1965 in undoing the exclusion of African-American citizens from their lawful place in society. The effects of these statutory reforms were lasting and profound.

The passage of these landmark statutes did not put an end to racial conflict simply because they ended explicit forms of discrimination. Indeed, one of the toughest issues to resolve was the proper regime for dealing with labor markets. The great mistake of the 1964 Civil Rights Act was to adopt an explicit colorblind standard for employment under Title VII, which had the effect of slowing down the introduction of affirmative action programs that might have led to more African-American employees in the workplace, especially in unionized firms.

Those affirmative action programs received belated judicial approval in United Steelworkers v. Weber (1979), in which Justice William Brennan held that Title VII “does not prohibit such race-conscious affirmative action plans.” In Weber, Justice Brennan upheld a program that set aside 50 percent of the in-plant craft-training places for black workers until they achieved parity to the percentage of black workers in the overall labor force within that community. That decision was the second major piece of Title VII’s employment law regime, following the 1971 decision in Griggs v. Duke Power, which had previously adopted a strict “business necessity” test to justify a disparate impact that any facially neutral test or business practice had on racial minorities. Weber enabled affirmative action programs, while Griggs blocked discrimination against protected minority groups.

Contributor Post Created with Sketch. Doing Justice to the Barrett Nomination

 

To the glee of his conservative base and to the consternation of his progressive opponents, President Trump has nominated Amy Coney Barrett for a seat on the United States Supreme Court. My own preference, which was shared by others, such as Peggy Noonan, was to delay a vote on the nominee until after the election. But the course of events has moved rapidly in the other direction, and a no-holds-barred nomination fight is now upon us.

In earlier times, Judge Barrett’s consistent level of high performance would have led to confirmation by acclamation under the now-disregarded practice of evaluating a judge’s legal understanding and technical competence, independent of her political orientation. But these are not normal times. Indeed, the current fight resembles the appointment of John Marshall, our greatest chief justice, to the Supreme Court by President John Adams on March 3, 1801, the day before Thomas Jefferson was sworn in as president.

Senator Mitch McConnell’s prompt announcement that the president would move forward with the nomination rests on the fact that McConnell had sufficient votes in his pocket. McConnell and Trump may think that they will gain a powerful political advantage by forcing the Democrats into a two-pronged strategy of massive resistance. The first is an all-out attack on Barrett for her religious associations, most notably her membership in People of Praise, a predominantly Roman Catholic faith community formed in 1971. The second is an institutional challenge, represented by Senator Elizabeth Warren’s adamant refusal to confirm a new Supreme Court justice until after inauguration on January 20, 2021. The Democratic playbook threatens to pack the Supreme Court if Barrett is confirmed, or to limit the appellate jurisdiction of the Supreme Court so that it could not review Biden administration proposals, like implementing the Green New Deal or increasing the rights and power of unions. Progressives by and large are fearful of judicial intervention by a conservative court that would challenge their culture war victories, upset their efforts to reshape the economy from top to bottom, and remake the regulatory world to be friendlier to business.

Contributor Post Created with Sketch. Trump and McConnell, Beware

 

I first met Ruth Bader Ginsburg in the winter of 1978 when we were both fellows at the Center for Advanced Studies in the Behavioral Sciences at Stanford. Our interactions were always cordial. From the first time we talked, it was clear that she was a passionate advocate first, and a detached academic second. She was always immersed in filing certiorari petitions at the Supreme Court in connection with the hugely successful Women’s Rights Project, which she ran at the American Civil Liberties Union from 1972 until she was appointed to the Court of Appeals for the District of Columbia in 1980.

Ginsburg had the rare quality of being both passionate and rigorous in her work, and she displayed those same traits of grit and excellence at every stage of her career. Moreover, her excellence as a lawyer was not confined to the women’s rights issues that brought her fame. She also displayed an impressive expertise on the many procedural, jurisdictional, and constitutional issues that form a huge part of the high court’s docket. It was surely possible to disagree with her on the merits of any given case, as I often did. But it was not possible to dispute the brilliance, knowledge, and determination that she brought to her lifetime’s work.

Ginsburg was nominated and confirmed to the United States Supreme Court in 1993 by a 96-3 vote, in a relative period of peace between the huge confirmation battles of Judge Robert Bork and Justice Clarence Thomas, and those of Justice Neil Gorsuch and Justice Brett Kavanaugh. The most bitter fights have been over Republican nominees, a pattern that promises to continue with the next nominee, whom President Trump has stated, surely incorrectly, that he has “an obligation” (as opposed to an option) to nominate. He has already announced it will be “a very brilliant woman.” The thought that the immediate struggle would be put off until after the election was dismissed by Senate Majority Leader Mitch McConnell’s immediate announcement that he will try to persuade the Senate to confirm a nominee.

Contributor Post Created with Sketch. The American Meltdown

 

Police confront rioters, South Portland, OR, Aug. 20.
It’s now a common trope to claim that the United States is so deeply racist that massive structural changes are needed in how government and private institutions operate. That dangerous claim has gained exceptional influence at all levels of education—from elementary school to graduate-level programs. But this idea rests on a wholly misguided understanding of the facts on the ground.

It is surely correct to mourn the death of any individual, regardless of cause. But it is also imperative not to make false causal accusations, as protesters have done, by attributing the deaths of George Floyd, Breonna Taylor, and other African Americans to entrenched police brutality and institutional racism. It is not just activists who make this claim. It also our governing organizations. The New Jersey Educational Association uses the Black Lives Matter banner to advocate a major reformation of the education system: “It is impossible to see the video of [Floyd] being strangled under the knee of a police officer in broad daylight on a public street and not be disgusted, horrified, angry, [and] sad.”

Contributor Post Created with Sketch. Assessing the Presidential Candidates

 

Choosing a president often requires voters to resolve a tension between two factors—the personal traits of the candidate and the policies that he and his administration will implement. How do Joe Biden and Donald Trump stack up on these measures?

The Democrats present Biden as a sensible, experienced administrator who will remedy the social divisions of the Trump era—now wracked with looting and violence—by restoring calm and order. But Biden is not without his weaknesses. Lingering concerns regarding his mental fitness will not go away. His penchant for gaffes and outbursts on the campaign trail is likely to persist. A sympathetic press has largely refrained from scrutinizing his son Hunter’s involvement as a board member of the corrupt Ukrainian gas company Burisma, and likewise has ignored charges of Biden’s alleged sexual improprieties, most notably those tied to Tara Reade.

Putting Biden’s character issues to the side, the inquiry then shifts to his substantive policies. A classical liberal such as myself insists that government should restrict itself to a limited menu of topics, and staunchly resists excesses in regulation and taxation. In my opinion, there is not a single issue on which he and his party take the correct position. Neither Biden nor his party’s platform recognize the limits and inevitable pitfalls of aggressive government action. Given Biden’s platform, taxes, especially of the rich, will dramatically increase to fund massive programs of redistribution intended to underwrite a long list of positive rights—education, health care, union representation, and equal pay.

Contributor Post Created with Sketch. COVID-19 Confusion

 

A scientific study attracted national attention last week by taking the dramatic position that the “excess deaths” from COVID-19 exceeded those observed with the Spanish Flu of 1918, at least for New York City. The absurdity of the claim is symptomatic of the imperfect understanding of the pandemic by this nation’s elites. To be sure, the letter correctly notes that the state of healthcare today is far better and more advanced than that of a century ago given the widespread availability of such impressive treatments as “standard resuscitation, supplemental oxygen, mechanical ventilation, kidney replacement therapy, and extracorporeal membrane oxygenation.” Indeed, those technological advances indicate that the true severity of COVID-19 is even greater than the raw numbers suggest.

With that said, the study is flawed in several key ways. The estimated number of total U.S. deaths from the Spanish Flu was 675,000 in a population of about 100 million people. Assuming there have been about 169,000 U.S. COVID-19 deaths in 2020 in a population of over 330 million people, the COVID-19 death rate is roughly one-twelfth of the Spanish Flu rate. That number could well increase before the pandemic runs its course. According to the Institute for Health Metrics and Evaluation (IHME), the U.S. death toll of COVID-19 could reach 300,000 by December, at which point the ratio would be about 7.5 to 1.

Contributor Post Created with Sketch. Two Cheers for HUD

 

President Trump’s Department of Housing and Urban Development (HUD) issued a rule this past week grandly titled “Preserving Community and Neighborhood Choice.” That rule undid an Obama administration rule on the same topic, called “Affirmatively Furthering Fair Housing” (AFFH). In July 2015, the Obama administration adopted an aggressive position that allowed HUD to monitor state, county, and local governments that received HUD grants to see that they had undertaken exhaustive efforts to remediate a wide range of racial disparities in housing markets, thereby raising the costs that arise from accepting government grants. Under HUD’s recently revised regulations, HUD Secretary Ben Carson scaled back the regulations so they concentrated not on the overall condition of local housing markets, but on the risks that individual acts of discrimination pose to individual applicants.

At no point in that order did HUD single out suburban housing for special treatment. Nonetheless, with scant regard to the content of the revised rule, President Trump posted a celebratory tweet: “I am happy to inform all of the people living their Suburban Lifestyle Dream that you will no longer be bothered or financially hurt by having low income housing built in your neighborhood.” This ill-advised outburst prompted a cascade of criticism that portrayed the new HUD regulation as a backhanded effort to undo President Obama’s much-needed protections against racial bias. As one critic alleged, whereas Carson carefully cloaked these major substantive reforms in a procedural guise that stressed paperwork reduction, the new rule in reality was intended to “reduce the pressure on local governments to provide space and opportunity for Black families in affluent white neighborhoods.”

But the new HUD rule scores well on two key points. First, it is more consistent with the basic objectives of the Fair Housing Act of 1968 (FHA), which aimed to prevent pernicious forms of discrimination in the housing market. Second, it avoids the highly interventionist mission creep of the Obama-era AFFH rule, which insisted that the purpose of HUD was “to create strong, sustainable, inclusive communities and quality affordable housing for all.”

Contributor Post Created with Sketch. Portland Goes Over the Brink

 

The continuing unrest in Portland, Oregon, which has now lasted some 55 nights, exemplifies the breakdown of law and order that has become a daily occurrence in many cities with progressive mayors. Portland police are nowhere to be found at the sight of the protests outside the Mark O. Hatfield Courthouse, a federal building. On June 26, President Trump issued an Executive Order sending federal troops to protect the courthouse—and so far, they have made at least 43 arrests. The President minced no words when he attacked the protesters as “anarchists and left-wing extremists” spurred on by “agitators who have traveled across State lines” to wreak havoc.

Both his words and his use of federal troops have provoked a fierce reaction. Writing in The Atlantic, Ronald Brownstein accused the President of driving an ugly wedge between Red and Blue America to boost his reelection chances this coming November. Similarly, The Atlantic’s Quinta Jurecic and Benjamin Wittes insist that it violates the rule of law for plainclothes federal agents to arrest local protestors and cart them away in unmarked vehicles. Meanwhile, Joe Biden accused the Trump administration of “brutally attacking peaceful protesters.” And Nancy Pelosi has likened the federal agents to “stormtroopers.”

This chorus of criticism rests on the assumption that all governmental processes should be transparent and above board, and that any federal presence in local communities only will further inflame a tense situation.

Contributor Post Created with Sketch. Fossil Fuel Strangulation by Judicial Decree

 

Judge James Boasberg of the District of Columbia District Court issued a short opinion last week in Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers. In it, he instructed Energy Transfer Partners, the pipeline builder, to temporarily cease using its 1,172-mile-long Dakota Access Pipeline (DAPL), which ships up to 570,000 barrels a day of crude oil from the Bakken and Three Forks fields of North Dakota to terminals and refineries in Patoka, IL.

The dispute was about a short-stretch of pipeline (1,094 feet) that ran approximately 100-feet below a lake, about one-half mile from tribal lands. From the moment that DAPL was announced, the Standing Rock Sioux Tribe mounted a full-scale attack on the venture. The pipeline was seen as yet another affront to its tribal way of life—the latest in a long string of historical injustices undertaken by, or with the blessing of, the United States government. At a more concrete level, the Tribe argued that the pipeline would run through its sacred lands and damage its water supply.

In fact, the pipeline does not cross into the Tribe’s land. Nonetheless, the Tribe sought to exercise its statutory rights to be consulted about the pipeline under both the National Historic Protection Act (NHPA) and the National Environmental Policy Act (NEPA). In 2015, the Tribe sued the Corps to reroute DAPL away from its lands, and raised multiple objections about the design and site of the pipeline. The objections to the pipeline continued even after it was put into operation in June 2017 without serious incident.

Contributor Post Created with Sketch. Black Reparations Parsed

 

michelmond / Shutterstock.com
In the midst of today’s heightened racial unrest, the calls for black reparations have become more insistent. In their recent book, From Here to Equality: Reparations for Black Americans in the Twenty-First Century, William A. Darity Jr. and A. Kirsten Mullen write: “Racism and discrimination have perpetually crippled black economic opportunities.” The offenses cited are slavery, legal segregation under Jim Crow, and more contentiously, “ongoing discrimination and stigmatization.” Their book figured centrally in a recent article in the New York Times Magazine by Nikole Hannah-Jones, who launched the highly controversial 1619 Project. In her piece, “What is Owed,” she makes this claim:

Reparations are not about punishing white Americans, and white Americans are not the ones who would pay for them. It does not matter if your ancestors engaged in slavery or if you just immigrated here two weeks ago. Reparations are a societal obligation in a nation where our Constitution sanctioned slavery, Congress passed laws protecting it and our federal government initiated, condoned and practiced legal racial segregation and discrimination against black Americans until half a century ago. And so it is the federal government that pays.

Contributor Post Created with Sketch. Should Cops Get ‘Qualified Immunity?’

 

The United States had just under 700,000 sworn enforcement officers in 2018, of whom 106 were killed in the line of duty that year. These officers are distributed among some 18,000 federal, state, and local police departments, which range in size from 36,000 officers in New York City to ten or fewer in hundreds of smaller towns and hamlets. All these individuals and departments are linked together by their license to use force when necessary to prevent violence and the destruction of property.

This raises a question: What legal regime should be implemented to prevent abuse by police officers?

The widely covered killing of George Floyd this past May—and the protests and looting that quickly followed—stemmed from a widespread lack of confidence in our public institutions. It did not matter that Minnesota Attorney General Keith Ellison brought charges against Derek Chauvin of the Minneapolis Police force, initially of third-degree murder and second-degree manslaughter, but later raised to second-degree murder. Nor did it matter that, shortly thereafter, related charges of aiding and abetting the murder were brought against three of Chauvin’s fellow officers: Alexander Keung, Thomas Lane, and Tao Thao.

Contributor Post Created with Sketch. The Gorsuch Legal Alchemy

 

The United States Supreme Court has sent shockwaves through much of the nation with its decision in Bostock v. Clayton County. By a six-to-three vote, the Court held in no uncertain terms that the prohibition against sex discrimination in Title VII of the Civil Rights Act of 1964 makes it illegal to fire a person “simply” due to their sexual orientation or gender identity.

The basic statutory text of Title VII provides that it is “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”

Writing for the majority, Justice Neil Gorsuch argued that his textualist approach compelled the novel conclusion that the term “sex” includes not only biological sex, but also sexual orientation and gender identity. “In the context of an unambiguous statutory text,” he wrote, “whether or not a specific application was anticipated by Congress is irrelevant.” His argument is misguided. It holds that the meaning of the term “sex” necessarily bears no relation whatsoever to the intentions of the Congress that passed the legislation or the public who endorsed it.

Contributor Post Created with Sketch. Beware of Tort Liability for COVID Cases

 

Now that American businesses are beginning to reopen, Congress must decide whether these firms should receive protections against suits for liability brought by their customers and employees who claim that they have contracted COVID-19 at those business establishments. The question has given rise to deep partisan divisions. Republicans, led by Senator Mitch McConnell, are adamant that any reform legislation adopted by Congress should include explicit protections from all tort liability. Democrats, along with their union and trial lawyer backers, oppose any and all protections, insisting that the usual standards of “reasonable care” afford these firms the only legal protection they need.

American Association for Justice CEO Linda Lipsen states the point tartly: “Sen. McConnell has been promoting immunity for companies that act unreasonably for over 30 years…This move to hold this covid package hostage with his agenda items is unpatriotic. Indeed, the trial lawyers and their union allies insist that a blanket waiver will only encourage reckless conduct by firms. Their concerns notwithstanding, a number of states have sought to provide exactly that protection by executive order. Moreover, employers are demanding that both employees and customers sign waivers of liability if they want to return to work or receive their services.

However, it is far from certain that these individual waivers will hold up in court. The vast expansion of damage actions in product liability and medical malpractice cases took place during the 1960s only after such waivers were struck down. During that period, the defendant’s strong edge in bargaining power was said to render any waiver of liability unenforceable. Given that change, courts need to fill the void on questions of loss allocation left by the refusal to honor contractual provisions. But how?

Contributor Post Created with Sketch. The Lancet’s COVID Fiasco

 

On June 4, The Lancet, a venerable British medical publication, formally retracted a thoroughly flawed study on the drug hydroxychloroquine (HCQ), originally published on May 22. The study was led by Dr. Mandeep R. Mehra, a professor of medicine at Harvard Medical School—and one of its co-authors was Dr. Sapan Desai, CEO of the small healthcare startup Surgisphere, which performed the study. Immediately upon publication, Surgisphere sought to parry charges that its data was flawed by claiming that contractual restrictions forbade it from sharing its granular datasets with outside parties for review and verification.

The key findings of the study were stunners: most critically, that the use of HCQ led to a substantial increase in mortality rates—around 30 percent—and the occurrence of cardiac arrhythmias in these COVID-19 patients.

Many experts immediately promoted the study. Steven Nissen, a cardiologist at the Cleveland Clinic stated: “It’s a very striking finding and it’s convincing to me… Based upon these findings and others, no one should take hydroxychloroquine with or without an antibiotic unless they are in a randomized controlled trial. It should not be used in the general population to prevent or to treat Covid-19 infection.” And Eric Topol, a leading American cardiologist, tweeted that the use of HCQ was associated with a “significant increase in death.” The ubiquitous Dr. Anthony Fauci, the long-time head of the National Institute of Allergy and Infectious Diseases, confidently announced days after The Lancet study that HCQ was “not effective” against coronavirus, but stopped short of calling for an outright ban. The World Health Organization announced that it was suspending clinical trials of the drug (now fortunately resumed), and this was soon followed by bans on the use of HCQ to treat COVID-19 by France, Belgium, and Italy.