WE SHOULD REALLY SEPARATE RACE AND STATE, BUT MEANWHILE HERE’S THE STORY OF How People from India Almost Became White.

VERY DANGEROUS RULING, IN EFFECT ALLOWING A PRESIDENT TO LEGISLATE: When President Obama changed immigration law without going through Congress, we were told, “it’s a policy choice allowed by the discretion given the president under the immigration laws to decline, temporarily, to deport ‘dreamers’ until Congress decides what to do. It’s not ‘legislating’ because any future president can just as easily change the policy.” But today, in a 5-4 decision written by Chief Justice Roberts, the Supreme Court has made it difficult for such policy choices to be reversed, in large part, it seems, because the policy choice led to regulations that created “reliance interests” among dreamers, requiring the Trump administration to more strongly justify reversing what was supposed to have been a mere policy decision. This is a very bad day for the separation of powers, and with Roberts once again punting, it brings up a truism I’ve noted many times: you don’t make significant, lasting change on the Supreme Court with a 5-4 majority, you need at least 6-3, maybe 7-2.

IT ALWAYS DOES: The Revolution is Eating its Own: Jonathan Chait’s article on progressive intolerance both describes and illustrates the problem.

IT IS IF YOU PRAY AT THE TEMPLE OF WOKENESS: Is Attending a Political Protest More Important than Attending a Funeral?

BURN (ER, FIRE) THE HERETICS!: Demands that Cornell Fire Clinical Law Prof William Jacobson for Criticizing Black Lives Matter Movement.

DEFUND THE LAW SCHOOLS!*

*Which doesn’t mean I actually want to cut funding to the law schools, and especially not to faculty salaries or pensions, which if anything should be increased. Rather, I’d like the government to, under cover of this slogan, spend money on my pet social causes by claiming that it somehow advances law school curricular reform.

THIS SEEMS TO BE A CONSISTENT 2020 THEME: Public Health Experts are Embarrassing Themselves:

In short, the situation we are faced with is that large pubic rallies will almost certainly kill and injure many Americans through Covid spread, and we don’t have the slightest non-speculative idea as to whether the protests will have a positive effect on public health, much less whether any such positive effects will outweigh the health harms from virus spread.

To the extent public health experts claim to be relying on their expertise, rather than faith as political activists or fortune-tellers, there is only one plausible “public health” answer to having large, public protests: based on what we can actually measure and predict, they are a significant net threat to public health.

BECAUSE I COULD NOT STOP FOR DEATH, HE KINDLY STOPPED BY MY POLITICAL RALLY:

WAIT, WHAT?:

I’m not getting how you “defund the police” without lots of police officers losing their jobs (and thus their eventual pensions) entirely, forget cuts. Is she thinking that they will be retrained as social workers or contact tracers? I’m really baffled here.

BUT THAT WOULD PROVIDE FEWER OPPORTUNITIES FOR GRAFT: Cities Should Take a Hard Look at Police Department Budgets:

Take New York City. In 1990, at the peak of the decades-long crime wave, New York City had 212,458 violent crimes, 932,416 property crimes, and 2,605 murders. At the time, it had a police force consisting of 26,756 uniformed and 9,483 nonuniformed personnel.

In 2018, the last year for which I could find statistics, New York City had 68,495 violent crimes, 281,507 property crimes, and 562 murders. In other words, crime is down dramatically.

Nevertheless, the New York City police force has since grown dramatically, consisting of approximately 36,000 officers and 19,000 civilian employees. Perhaps having more cops on the payroll has contributed to the lower crime rate, though crime rates have fallen nationwide. Even if so, the more than doubling of civilian employees is an especially stark statistic. With far fewer crimes to process, how could New York City possibly need twice as many civilian employees as in 1990?

UPDATE: Some or all of the increase may be the result of merging the transit and housing police into the NYPD. Either way, one bureaucrat for every two cops, with police coverage 24/7 and most of the bureaucracy working 9-5 is an astounding ratio.

WHAT HAPPENED TO THE “PUBLIC HEALTH EMERGENCY?”: Remember when we had to listen to the allegedly unanimous opinion of public health experts that nothing, literally NOTHING, was more important that social distancing to prevent the spread of Coronavirus?

I agree that it’s important (regardless of whether the particular incident of excessive use of force by police in question was a product of racism or just routine police brutality). I also think that putting 30% of the public out of work is important, indeed more important, especially given that racism is a persistent issue that will create plenty of protest opportunities, whereas destroying millions of people’s livelihoods was immediate.

Some of my social media friends have been insisting for some time that many of the hardcore lockdown/social distancing advocates were less concerned about public health and more about imposing their own value system against what they considered an unenlightened public, and some subset of those people actually welcomed the lockdown because they prefer people to live on the government dole that to allow “capitalist exploitation.” I’m not, to say the least, a big fan of the political and public health establishment, but I nevertheless thought this was too cynical.

Yet today we see Mayor DeBlasio arguing that protesting racism is more important than being banned from attending religious services indefinitely, and Governor Murphy of New Jersey stating that protests against racism may flout social distancing rules, but he’s going to continue to enforce them against lockdown opponents.

Worse yet, Slate reports that:

Facing a slew of media requests asking about how protests might be a risk for COVID-19 transmission, a group of infectious disease experts at the University of Washington, with input from other colleagues, drafted a collective response. In an open letter published Sunday, they write that “protests against systemic racism, which fosters the disproportionate burden of COVID-19 on Black communities and also perpetuates police violence, must be supported.”… By Tuesday afternoon, more than 1,000 epidemiologists, doctors, social workers, medical students, and other health experts had signed the letter.

I don’t think anyone who knows me would describe me as at all credulous, but I think I need to get even more cynical.

UPDATE: Just a few days ago, Yale epidemiologist Gregg Gonsalves, was literally accusing President Trump of “genocide” for not taking stronger measure to contain Covid-19. Today, he signed the “protests against racism are more important than stopping the spread of Covid-19” letter.

HOW THE MEDIA CREATES NARRATIVES: Here is the Washington Post showing that blacks are shot to death by police more than Hispanics who are shot more than whites who are shot much more often than…. “other”. Other is about 43 million people, which would include about 21 million Asian Americans, who I’m guessing have an even lower rate of being shot to death by police than the full “other” category. But if you are trying to frame the narrative as an uncomplicated “cops shoot people of color more than whites” you can’t actually break out “Asians” because that undermines the narrative and means you have to dig a bit beyond the simple formula. So “Other” it is. It would also be helpful, though not to the “narrative,” to compare the percentage of individuals shot by race/ethnicity to arrest rates for violent crime.

MY PROPHETIC SOCIAL MEDIA FRIENDS: Some of my Facebook friends predicted that the shutdowns, by reducing employment esp. among the working poor and creating boredom by shutting people up in their homes would be the tinder for social conflagration. I thought that was unreasonable, but now it’s hard to gainsay.

THE IRONY OF GLENN GREENWALD CRITICIZING OTHERS FOR NOT BEING FAIR AND OPEN-MINDED: I’ll give this much to Glenn Greenwald: he’s smart, and doesn’t desire to play the role of Democratic Party apparatchik. That, and his far-left outlook, makes him a useful source of criticism for those who are apparatchiks. But when, as in Glenn’s link below, he accuses other journalists of not being fair and open-minded? Well, that’s just a lack of self-awareness. Here he is arguing that pro-Israel sentiment in the U.S. is at least as bad for freedom of speech as Islamist terrorists murdering cartoonists. And I discussed here an occasion when he made ridiculous allegations of racism against John McCain. And here are a couple of other occasions in which I called out Greenwald for rather blatant disregard for the truth. Greenwald is all moral outrage, all the time, and attacks anyone who doesn’t share his idiosyncratic priorities, a group that includes mainstream Democrats. Caveat emptor.

NOT JUST NO, HELL NO: Some law professors think that administrative agencies should be encouraged to play a greater role in developing American constitutional law. I discuss the role agencies have played, more or less under the radar, and why giving them even more of a role is a bad idea, in this article.

FILE THIS UNDER “DEMOCRATIC HEROES CAN’T BE RACIST”: The Irony of “The Plot Against America”.

The book and mini-series imagine Pres. Charles Lindbergh dispersing Jews to the hinterlands, but FDR, consistent with how he ultimately treated Japanese-American citizens, was the one who actually favored that.

FLASHBACKS (From Ed):

● New Documents Reveal FDR’s Eugenic Project to ‘Resettle’ Jews During World War II.

● Historian: New Evidence Shows Fdr’s Bigotry Derailed Many Holocaust Rescue Plans.

(Updated and bumped.)

“HISTORY” IS INCREASINGLY PROPAGANDA: In 1933, FDR issued a dictatorial executive order banning Americans from owning gold and ordering them to turn their gold in to the Federal Reserve. Violators were subject to jail terms of up to ten years, plus a fine. Here, by contrast, is how a leading historian of FDR and the New Deal portrays it:

BUT HE’S NOT TRUMP, SO THAT’S OK: Media darling Cuomo mishandled COVID-19, killing thousands.

THROUGH THE LOOKING-GLASS, AFFIRMATIVE ACTION EDITION: Are Spaniards “Persons of Spanish Culture”? A strange affirmative action classification in Boston suggested that the answer is no.

FLASHBACK, 1992: Apparently, faculty claiming phony Native American status was common at Harvard. Of course, Harvard made up for its insensitivity in this regard a few years later by hiring … Elizabeth Warren, and touting her as their first Native American member of the law school faculty.
(Source: Detroit News, April 12, 1992)

THE MODERN AMERICAN LAW OF RACE: Did you ever wonder why people from Spain are considered members of an official American minority group (“Hispanic”) but Greeks, Iranians, Armenians, and Arabs are not? Or why we lump groups that have nothing in common linguistically, culturally, religiously, or appearance-wise into the “Asian” category?

Did you ever wonder whether ethnic/racial self-identification for affirmative action purposes is ever challenged, and if so what criteria courts and administrative agencies use to determine whether someone could lawfully claim such status?

You can find the answers to these questions and more in my latest academic article, “The Modern American Law of Race,” is available for download here.

A LAWLESS FEDERAL RESERVE: The Fed’s experiment with junk bonds is about to begin.

Critics argue the Fed is overstepping its mandate by purchasing corporate bonds — a step it never took during the 2008 financial crisis. Gundlach said the Fed is using a “shell company set up to circumvent” the Federal Reserve Act, which created the US central bank.

The Federal Reserve Act prohibits the Fed from buying corporate assets. To get around that problem, the Fed is setting up a special purpose vehicle managed by BlackRock (BLK) to do the buying. The central bank cited “unusual and exigent circumstances” that authorizes the Fed under Section 13-3 of the Federal Reserve Act to conduct “broad-based” lending facilities. Still, the Fed will be the one calling the shots. The Fed website said BlackRock will be “acting at the sole direction of the New York Fed on behalf of the facilities.” “It’s terrible what they are doing. The Fed did a complete runaround the Federal Reserve Act,” said Boockvar, the Bleakley Advisory Group CIO.

I’m rather concerned that any price signals the market would be giving out about creditworthiness are going to be smothered by the Fed, but the Fed acting well-beyond its legal authority is a much greater long-term danger.

ABOUT THAT STUDY PURPORTING TO SHOW THAT COVID-19 TAKES AN AVERAGE OF TEN YEARS OFF A VICTIM’S LIFE: This study got a lot of attention in the U.S. media, but it has a glaringly obvious flaw. As an online commenter on the paper (which has not yet been peer-reviewed) wrote to the authors, “you are implicitly assuming that the people who are dying are more or less representative of the average, which seems like a major assumption that, if untrue, would render your conclusions pretty useless. I hope I’m missing something here because it would seem far more intuitive to assume that people who are dying are the most vulnerable of their respective cohorts.”

Indeed, not only would it be intuitive, but we know that a wildly disproportionate percentage of the fatalities have been residents of nursing homes. Residents of nursing homes are there because they are quite ill and can’t take care of themselves. There is zero reason to think that a nursing home resident with disease X has a similar life expectancy to the average person of the same age with disease X, and there is every reason to believe (a) that their life expectancy is lower; and (b) that because they are sicker, if they catch Coronavirus they are more likely to succumb to Covid-19. One would expect that even “otherwise-healthy” people who succumb to Covid-19 would, on average, be more likely to have an undiagnosed health issue than those who don’t, and thus have a lower life expectancy. When called on this by commenters, the lead author responded that the authors were aware of these issues, but “we would be surprised if this had a large enough effect to result in a substantial decrement in life expectancy.” This strikes me as being so attached to one’s thesis that one is willfully blind to its fatal flaw.

THE BALI MYSTERY: Bali had five direct flights a day week from Wuhan through mid-January. Why does it have so few cases of Covid-19?

NEWS YOU CAN USE: In light of people’s plans being upended by the Coronavirus, some law schools are extending the application deadline for this Fall’s entering class.