April 2021 – Page 4 – Lone Candle

The Supreme Court’s new decision about evangelical preachers on campus, explained

Posted on April 22, 2021 by Lone Candle

“what the Court held in Uzuegbunam, which was decided in an 8-1 vote with only Chief Justice John Roberts in dissent, is that this case is not moot. Because Uzuegbunam sought “nominal damages” — a kind of automatic payment for a victorious plaintiff who isn’t entitled to any other relief, and that is often just a single dollar — Thomas’s majority opinion concludes that Uzuegbunam still has a live dispute with the college over whether he is entitled to that one dollar.”

…

“Despite the case’s provocative facts, Uzuegbunam has little to say about the First Amendment, or about broader cultural disputes about campus speech. The issue before the Court was limited to whether Uzuegbunam could continue to press his lawsuit even though he personally has very little to gain from it.
But the stakes in this case were quite significant, and they led to an unusual alliance among liberal and conservative groups that frequently butt heads in the Supreme Court. The case produced a raft of amicus briefs from conservative religious groups that urged the Court to rule in favor of Uzuegbunam, but left-leaning groups such as Public Citizen, the American Civil Liberties Union, and the American Humanist Association also filed briefs in support of Uzuegbunam.

The latter organization frequently files lawsuits seeking to vindicate the separation of church and state, and it feared that a ruling against Uzuegbunam could undermine those suits.

Public Citizen’s brief explains why left-leaning groups found common cause with the religious right in this case. First, they argue, allowing claims for nominal damages to move forward facilitates “the sound development of constitutional law in contexts in which traditional compensatory damages may not be appropriate.”

Imagine, for example, a slightly different version of the facts in Uzuegbunam. In this hypothetical, a civil rights organization believes that colleges throughout the country are systematically giving lower grades to Black students. So they identify a student hurt by this alleged discrimination, and file a lawsuit seeking to establish a legal precedent that will apply to all campuses across the country — or at least within a particular federal judicial circuit.

But just when they are about to win their case, the defendant college backs down, agrees to raise the plaintiff student’s grades, and seeks to dismiss the case as moot. Under Uzuegbunam, this lawsuit could still proceed so long as the plaintiff asked for nominal damages — and thus the civil rights organization would still be able to secure the binding precedent that it seeks.

Additionally, Public Citizen’s brief says, if a plaintiff can move forward with a claim for nominal damages, that plaintiff may be able to “obtain an award of attorney’s fees.” Federal law permits the “prevailing party” in many civil rights suits to receive “a reasonable attorney’s fee” from the defendant — basically, the defendant is ordered to pay for the victorious plaintiff’s lawyers.

The purpose of this law is to encourage lawyers to bring suits that vindicate individuals’ civil rights; attorneys would understandably be reluctant to do so if they weren’t sure if they’d be paid for their efforts. And such fees can provide the operating funds that allow nonprofit litigation shops to employ much of their staff.

So, while the plaintiff in Uzuegbunam is likely to earn considerable sympathy from conservatives, the stakes in this case went far beyond disputes over campus speech. Had Uzuegbunam lost this case in the Supreme Court, the biggest losers might have been civil rights attorneys arguing cases traditionally associated with the political left.”

…

“In the early ’90s, when conservative lawyers couldn’t even dream of prevailing in the kinds of lawsuits that get taken seriously by the current Supreme Court, conservative justices spent a lot of time swatting down cases brought by civil rights and environmental groups. So it was easy to see why a judge like Scalia might want to make it harder for plaintiffs with marginal claims to bring lawsuits. Today, however, strict limits on who can bring a federal lawsuit are at least as likely to hinder a pro-gun organization or a religious conservative as they are to halt a lawsuit brought by a left-leaning party or organization.
And so Roberts finds himself alone, with none of his fellow conservative justices (or, for that matter, the Court’s three liberals) embracing his narrow view of who is allowed to pursue a federal case.”

The Chauvin Verdict Is a Reminder That We Still Need To Abolish Qualified Immunity

Posted on April 22, 2021 by Lone Candle

“It’s remarkably rare for a police officer to face criminal charges for the misuse of force. We know that Chauvin had 22 complaints filed against him by the time he was arrested for Floyd’s death, and that he was allowed to remain with the MPD through all of them.

When it comes to fatal encounters, we have a slightly better idea of the disparity: Only about 139 officers since 2005 have been charged with murder or manslaughter in relation to an on-duty shooting, though about 1,000 fatal police shootings occur each year. Of the officers charged, a small minority are convicted.

Counting fatal encounters omits many more victims of police misconduct who live to tell about it. The data we do have paints an incomplete but unsettling picture, as police departments often refuse to make public reports against officers. A report from ProPublica is instructive: “In 2018, the [Civilian Complaint Review Board] looked into about 3,000 allegations of misuse of force [in the New York Police Department],” wrote Eric Urmansky last summer. “It was able to substantiate 73 of those allegations. The biggest punishment? Nine officers who lost vacation days.”

In other words, people whose rights are violated by police can’t always count on the criminal courts or even police departments to reprimand their employees; civil suits are often the only avenue to justice. Yet thanks to qualified immunity, those individuals often find that road blocked off, too.

The legal doctrine, manufactured by the Supreme Court, protects government officials from federal civil rights lawsuits if the official’s specific behavior was not “clearly established” as a rights violation in a precedent handed down by the U.S. Supreme Court or by another court within the same circuit. In other words, for a plaintiff to sue a police officer in federal court, a prior plaintiff must’ve already sued over the exact same violation and won. Any plaintiff who sues after being harmed in a remotely unique way risks being told that the officer who harmed them could not have been expected to know they were violating the Constitution.”

…

“Chauvin might seem like an example unbefitting of this discussion—the City of Minneapolis settled with Floyd’s family for a reported $27 million. Had the case not been filmed and highly publicized, as in the above examples, that might not have happened.

“Incredibly, had the city not chosen to settle the lawsuit, Derek Chauvin would have had a very plausible chance of getting the suit thrown out on qualified immunity grounds—even after being convicted of murder,” says Clark Neily, vice president for criminal justice at the Cato Institute. “There is no preexisting case in the Eighth Circuit under which it was ‘clearly established’ that pinning a suspect under one’s knee for nearly ten minutes until they lose consciousness and their heart stops beating violates the Fourth Amendment.”

The video footage here was the game-changer—something that victims aren’t always afforded. It’s also something that government officials may take issue with. In 2014, officers in Denver, Colorado, attempted to force a bystander to delete a film he took of them beating a suspect during an arrest. Though a federal court ruled those cops violated the First Amendment in doing so, it gave them qualified immunity.”

Meritocracy is bad

Posted on April 22, 2021 by Lone Candle

“The current system of social hierarchy in the United States is of course not a perfect meritocracy (nothing is ever perfect), but it’s genuinely pretty successful on its own meritocratic terms. The problem is that those terms are bad. American society will not get better if we try to make it more genuinely meritocratic along any dimension of possible understanding of what the term means. What we need to do is relax our level of ideological investment in the idea of meritocracy and be more chill.”

…

“If you want a story about the problem with meritocracy, I would read Dylan Scott’s recent article about what researchers have found about the consequences of private equity takeovers of nursing homes:
“The researchers studied patients who stayed at a skilled nursing facility after an acute episode at a hospital, looking at deaths that fell within the 90-day period after they left the nursing home. They found that going to a private equity-owned nursing home increased mortality for patients by 10 percent against the overall average.

Or to put it another way: “This estimate implies about 20,150 Medicare lives lost due to [private equity] ownership of nursing homes during our sample period” of 12 years, the authors — Atul Gupta, Sabrina Howell, Constantine Yannelis, and Abhinav Gupta — wrote. That’s more than 1,000 deaths every year, on average.”

Why do private equity takeovers kill so many people? It’s not because the Wall Street boys are dimwitted. The people who work in private equity are very smart. Their job is to look for companies that, for whatever reason, are not being managed in a way that maximizes shareholder value. Then they take them over with borrowed money and rejigger operations so as to increase profits. In the case of nursing homes, it turns out that basically, if you give patients more drugs, you can get away with lower staffing levels, and then you can drain the resources that are freed up by that in various ways”

…

“The healthcare sector poses these kinds of questions in droves. To become a medical doctor, you generally need to get into a good college, have decent grades there, get a good score on a pretty hard standardized test, and then put in a bunch of time into a challenging graduate education program. So doctors are quite a bit smarter than the average American, which seems reasonable. Nobody wants a dumb doctor. But you also don’t really want a shrewd doctor who is putting his smarts to use figuring out how to take advantage of his asymmetrical information vis-a-vis his patients to buy unnecessary services. You want healers who, yes, earn a comfortable living, but also comport themselves according to a code of honor and offer legitimate medical advice.
But this concept of honor and virtue is consistently at odds with the merit principle.”

…

“The whole point of George Washington isn’t that he had penetrating insights into public policy — it’s that he provided character and ethical leadership under circumstances that lead a lot of countries to become military dictatorships. You don’t want people who are extremely stupid running everything. But in both government and the economy, it’s just not the case that putting the “best and brightest” in charge of everything is a good idea. And crucially, that’s not because the “best and brightest” secretly aren’t really the best and brightest. It’s because just assigning all power and responsibility and economic reward to the best and brightest is a genuinely bad idea.”

…

“Back in 2019, Rafael Nadal earned $16 million in prize money playing tennis. Gael Monfils, in ninth place, earned $3 million.
These are the kind of sharp income disparities that lead Elizabeth Warren to say the economy is rigged. But of course pro tennis isn’t “rigged” in any normal sense. Fair, tournament-style competitions just tend to produce this kind of outcome where modest differences in ability lead to wild disparities in earnings. It’s honestly just more fun that way. We like to see high-stakes competitions, and we also like to see ability win out, and that’s what you get.

For the purposes of generating an entertaining spectacle, there’s nothing wrong with that. Indeed, there’s a reason why pro-inequality people almost always use examples that involve rich athletes or entertainers since it helps you get around questions of system-rigging.

But the basic reality is that it is not great for material resources to be distributed so unequally. The marginal dollar taken out of Nadal’s hands and given to someone in need will greatly increase human flourishing. There are lots of valid questions to ask about the macroeconomic impact of various kinds of taxes and the optimal design of welfare state programs. But the benefits of an egalitarian economic order are clear, real, and don’t fundamentally hinge on the idea that Nadal or anyone else did anything “unfair” to get where they are.

It takes hard work to be the champion, of course, but it’s equally obvious that the vast majority of people would never be as good as Nadal no matter how hard they tried. Almost everyone who’s successful works hard to get where they are. But they have also lucked into abilities that most people don’t have. And beyond that, they have meta-lucked into being alive at a time and place where the abilities they lucked into are valuable. Apparently, the highest-earning distance runner is just the one who happens to be American. An American can get better sneaker endorsements than a Kenyan or Ethiopian whose results are as good or better.

He’s great at what he does. He’s the beneficiary of dumb luck. It’s both, not either/or, and the sooner we accept that everything is like this, the saner we can be.”

…

“My read on a lot of what’s happening in elite cultural institutions in the United States is that we are currently living through a desperate scramble to make certain kinds of social justice goals and egalitarian commitments fit into a fundamentally unsound meritocratic framework.
What you need to do is actually change the framework — have a society that’s less based on sorting and ranking, and more based on equality.”

…

“The facts are pretty clear that poor ethics can frequently be rewarded. To have a healthier society, we need more emphasis on fair play, “an honest day’s work for an honest day’s pay,” and creating an atmosphere in which people would be ashamed to tell their parents that their well-paid finance job involves identifying ways to make patient care worse. That’s not a simple switch we can flip. And while it obviously includes a regulatory component, it’s fundamentally not a regulatory issue. It’s a question of social values and getting away from celebrating tournament winners and being “the best,” and a shift to celebrating other kinds of virtues including humility, restraint, fairness, and a belief that some things just aren’t worth it.”

The “Supermarket Sweep”

Posted on April 21, 2021 by Lone Candle

““From Seattle to Los Angeles, a “shoplifting boom” is hitting major retailers, which deal with thousands of thefts, drug overdoses, and assaults each year. Since 2010, thefts increased by 22 percent in Portland, 50 percent in San Francisco, and 61 percent in Los Angeles. In total, California, Oregon, and Washington reported 864,326 thefts to the FBI last year. The real figure is likely much higher, as many retailers have stopped reporting most shoplifting incidents to police.

Drug addiction is driving this shoplifting boom. In recent years, West Coast cities have witnessed an explosion in addiction rates for heroin, fentanyl, and meth; property crime helps feed the habit. According to federal data, adults with substance-abuse disorders make up just 2.6 percent of the total population but 72 percent of all jail inmates sentenced for property crimes. Addicts are 29 times more likely to commit property crimes than the average American. Furthermore, as the Bureau of Justice Statistics found, “[39 percent of jail inmates] held for property offenses said they committed the crime for money for drugs”—the most common single motivation for crime throughout the justice system.

Unfortunately, as West Coast cities grapple with an addiction epidemic, the shoplifting boom has only accelerated because of decriminalization. California’s Proposition 47, approved by nearly 60 percent of voters statewide in 2014, reclassified many drug and property felonies as misdemeanors, effectively decriminalizing thefts of $1,000 or less. Many criminals now believe, justifiably, that they can steal with impunity. For example, in San Francisco, police reported 33,000 car break-ins last year; the city now leads the nation in overall property crime. In Portland, a repeat offender nicknamed the “Hamburglar” stole $2,690 worth of meat in one year. He bluntly told police officers: “I know the law. I know the rules. I know what I can and can’t do . . . I’m never going to get over $1,000 at any store.” The Portland Police Department, which doesn’t assign officers to retail theft cases, admits that official statistics vastly underreport actual crime.

Some retailers have adopted a policy of private decriminalization, in many cases prohibiting their security guards from physically apprehending shoplifters. Liability losses, they believe, outweigh property losses. When I asked the manager of Seattle’s 96,000-square-foot Target if employees followed a “no touch, no chase” policy, he responded: “Officially, I can’t tell you our policy, but if you watch our front door for an hour, you’ll see pretty clearly what’s happening.” According to reports, the store likely has ten to 40 “security incidents” a day, including a dramatic incident last year when a drug-frenzied man went on a 15-minute rampage, destroying displays and merchandise, only to walk out the door with duffel bags full of goods. Police never arrived.

The shoplifting crisis isn’t limited to the West Coast. Retailers across the nation report $16.7 billion in losses to shoplifting. In many cases, they simply pass along the cost to consumers, with one study suggesting that this “shoplifting tax” costs the average family $400 a year. In Seattle, the shoplifting boom has forced some retailers to close stores in the downtown commercial district, citing massive losses and the threat of violence against employees. Another store, Outdoor Emporium, called 911 more than 200 times last year, but the city prosecuted only one of the incidents. Other retailers have stopped reporting shoplifting altogether—in a recent survey, downtown Seattle businesses reported “less than 5 percent of the daily crime they experience.”””

Why Ted Cruz and Tom Cotton Are Like Trump Cover Bands

Posted on April 21, 2021 by Lone Candle

“Nobody expected the mob of bands that followed the Beatles’ early success would replicate the lads’ triumphs just because they wore their hair long, sported the same suits and drew on the same musical influences. And they didn’t. The imitators wrote hits, filled theaters and even caused young girls to scream, but Beatlemania—almost a mass delusion, a form of ecstatic consciousness provoked just by the toss of a mop-topped head, or an arrival on an airport tarmac—remained highly specific to the actual Beatles.

The Donald Trump phenomenon is the closest thing we’ve seen in American politics, with the Republican base standing in for smitten teenagers in 1964. So it shouldn’t have come as a surprise that when the base gathered for its annual conclave at CPAC last week, none of Trump’s would-be successors roused more of a response than a group of Fab Four impersonators at a sock hop.

They tried—boy, did they try. Sen. Tom Cotton (R-Ark.), trying to boost his anti-immigration credentials, dropped a quip about the Biden administration’s border policy—“That’s not catch-and-release,” he said, “that’s recruit-and-release!”—at which point a “few polite titters rippled through the ballroom,” reporter Elaina Plott observed in the New York Times. Sen. Rick Scott (R-Fla.) bombed, too, as he tried to out-Trump Trump with an anti-China line that zinged Hunter Biden. (He “paused for a reaction that never came,” wrote Plott.) Sen. Ted Cruz (R-Texas), the college debate champion and one-time Tea Party darling, treated the session like a stand-up comedy gig, drawing only scattered applause. The only Cruz line that made the crowd roar was one in praise of Dear Leader Trump, the Texas Monthly reported.

Sen. Josh Hawley (R-Mo.) and former Secretary of State Mike Pompeo’s Trump impressions did better, but the winners of the battle of the bands were Govs. Ron DeSantis (R-Fla.) and Kristi Noem (R-S.D.), both of whom ranked second and third to Trump in CPAC’s 2024 straw presidential poll—but more from their resistance to the pandemic lockdown than their evocation of Trump himself.

Can nobody in the GOP wear the big man’s big suit and endless red tie? Trump himself got a decent response from the “ebullient crowd” (Washington Post) when he spoke at CPAC, so the base hasn’t tired of his jokes, insults, grievances and bombast. They just needed to hear the original hits as performed by the original hit-maker.”

‘We’re going to lose fast’: U.S. Air Force held a war game that started with a Chinese biological attack

Posted on April 21, 2021 by Lone Candle

“in September in the midst of the war game, actual Chinese combat aircraft intentionally flew over the rarely crossed median line in the Taiwan Strait in the direction of Taipei an unprecedented 40 times and conducted simulated attacks on the island that Taiwan’s premier called “disturbing.” Amid those provocations, China’s air force released a video showing a bomber capable of carrying nuclear weapons carrying out a simulated attack on Andersen Air Force Base on the U.S. Pacific island of Guam. The title of the Hollywood-like propaganda video was “The god of war H-6K [bomber] goes on the attack!”

In case the new U.S. administration failed to get the intended message behind all that provocative military activity, four days after President Biden took office, a large force of Chinese bombers and fighters flew past Taiwan and launched simulated missile attacks on the USS Roosevelt carrier strike group as it was sailing in international waters in the South China Sea.

Little wonder that many foreign affairs and national security experts believe the global pandemic has accelerated trends that were already pushing the United States and China toward a potential confrontation as the world’s leading status quo and rising power, respectively. This month the Council on Foreign Relations released a special report, “The United States, China, and Taiwan: A Strategy to Prevent War,” which concluded that Taiwan “is becoming the most dangerous flash point in the world for a possible war” between the United States and China. In Senate testimony on Tuesday, the head of U.S. Indo-Pacific Command, Adm. Phil Davidson, warned that he believes China might try and annex Taiwan “in this decade, in fact within the next six years.”

Meanwhile, a leading Chinese think tank recently described tensions in U.S.-China relations as the worst since the Tiananmen Square massacre in 1989, and it advised Communist Party leaders to prepare for war with the United States.

What many Americans don’t realize is that years of classified Pentagon war games strongly suggest that the U.S. military would lose that war.

“More than a decade ago, our war games indicated that the Chinese were doing a good job of investing in military capabilities that would make our preferred model of expeditionary warfare, where we push forces forward and operate out of relatively safe bases and sanctuaries, increasingly difficult,” Air Force Lt. Gen. S. Clinton Hinote, deputy chief of staff for strategy, integration and requirements, told Yahoo News in an exclusive interview. By 2018, the People’s Liberation Army had fielded many of those forces in large numbers, to include massive arsenals of precision-guided surface-to-air and surface-to-surface missiles, a space-based constellation of navigation and targeting satellites and the largest navy in the world.

“At that point the trend in our war games was not just that we were losing, but we were losing faster,” Hinote said. “After the 2018 war game I distinctly remember one of our gurus of war gaming standing in front of the Air Force secretary and chief of staff, and telling them that we should never play this war game scenario [of a Chinese attack on Taiwan] again, because we know what is going to happen. The definitive answer if the U.S. military doesn’t change course is that we’re going to lose fast. In that case, an American president would likely be presented with almost a fait accompli.””

…

“Part of the problem is that China advanced its A2/AD strategy while the Pentagon was largely distracted fighting counterterrorism and counterinsurgency wars in Iraq and Afghanistan for two decades. Beijing is also laser-focused on Taiwan and regional hegemony, while the U.S. military must project power and prepare for potential conflict scenarios all around the globe, giving the Pentagon what Ochmanek calls an “attention deficit disorder.” Finally, there is the complacency of the perennial winner that makes it hard for senior U.S. military officers to believe that another nation would dare to take them on.”