REPOST:  For those of you who couldn’t download my “Stand Your Ground” dissent on SSRN a few days ago, I am reposting.  (For reasons that were never quite clear to me, SSRN took it down for a while.)

HOT, HOT, HOT!!: The U.S. Commission on Civil Rights has finally released its report on “Stand Your Ground” laws. My fellow commissioners were disappointed that the staff’s independent empirical research didn’t support their preconceived beliefs … so they buried it. Read my dissenting opinion here.  

JOHN FUND:  “In Some Places, Easter Isn’t Being Celebrated.  It’s Being Fined.”

BREAKING THE CARDINAL RULE:  A disturbing miscarriage of justice is finally righted by the High Court of Australia.  But what does it say about Australia’s judicial system that it took the High Court’s intervention?

“STAND YOUR GROUND” LAWS: Former Attorney General Eric Holder has argued that “Stand Your Ground” laws are a dangerous new innovation in the law. But as I explain in my dissenting statement to the Commission on Civil Rights’ new report, “Stand Your Ground” laws are new only if Sir Edward Coke’s Institutes of the Lawes of England is your idea of new.

(Yes, I’m a law nerd. I can’t get enough of 17^th century law books. The long history of the “Stand Your Ground” approach to self-defense law is particularly interesting.)

SWEDEN: Some people are pointing to the contrast between Sweden and Norway as a useful model for our situation. Sweden is one of the few countries that has not shut things down drastically. Instead its leaders say that they are relying on people’s common sense. By contrast, the otherwise similarly situated Norway has taken an approach more like ours. Many people are thus pointing to the fact that while Sweden’s population (about 10 million) is twice Norway’s (about 5 million), Sweden has only about 30% more confirmed cases. That sounds good … at least at first blush.

But numbers can be deceiving. While Sweden’s population is twice Norway’s, its number of deaths from among confirmed cases is more than six times higher than Norway’s. The difference is unlikely to be the quality of Swedish health care. My initial thought was that it was much more likely that Norway has tested more symptomatic people in its population than Sweden has. Sweden therefore may have a higher proportion of unconfirmed but nevertheless very real cases.  They just aren’t being counted.

Testing kits remain in short supply. Most countries are able to test only a proportion of the individuals who are symptomatic. It may well be the case that to get the test in Sweden one needs to be sicker than one does in Norway.

I checked this against the data on Real Clear Politics and sure enough, Norway has given massively more tests (113,896) than Sweden has given (54,700), despite Sweden’s much larger population.

We need more analysis.

JOHN FUND & JOEL HAY:  “Has Sweden Found the Right Solution to the Coronavirus?”

WORLD ENDS TONIGHT, WOMEN AND MINORITIES HARDEST HIT:  “Pandemic Could Jeopardize Law Firm Diversity Efforts.”

ON THIS DAY IN 1841, TYLER, TOO, BECAME PRESIDENT … SORT OF: President William Henry Harrison died only 31 days into his term, making him the first President to die in office. Two days later, Vice President John Tyler was sworn into office. Here’s the Constitutional quirk: In those days, the Constitution simply said that in case of the President’s death “the Powers and Duties of the said office” “shall devolve upon the Vice President.” It didn’t say that the Vice President BECOMES the President. Tyler, however, took the position that he WAS then the President. While many people disagreed at the time, his action set the precedent. It wasn’t until the 25^th Amendment, ratified in 1967, that it was made clear that the Vice President actually becomes the President upon the death, resignation or removal of the President.

WASH YOUR HANDS … AND DON’T GIVE DR. LISTER ANY LIP ABOUT IT: On this day in 1827, Joseph Lister, the father of modern antiseptic surgery, was born. Lister had the idea that surgeons could prevent infecting their patients by washing and disinfecting their hands with carbolic acid before surgery. This idea earned him ridicule—until people started noticing that it did indeed help.

MORE ON THE SLOW-JOE-TO-CUOMO SCENARIO:  Will the Democrats Junk Joe?

BILL McGURN:  “Harvard’s China Virus:  Covid-19 isn’t the only ‘stigma’ that has been imposed on Asian Americans.” (He quotes Pete Kirsanow and me).

REMEMBERING CORONAVIRUS VICTIM JOE DIFFIE: My favorite Joe Diffie song is John Deere Green.  I sing it in car.  Yes, I am one of those drivers …

REMEMBERING SENATOR TOM COBURN:  Not your average politician.

I ALREADY BOUGHT MY COPY:  Excerpts from John Ellis’s “The Breakdown of Higher Education.”

CRIME IS DROPPING IN OUR MAJOR CITIES DURING THE CRISIS: If the ACLU has its way, however, many prisoners will be released and hence the long-term consequences may be to increase crime.  (Here’s hoping American don’t forget how lucky we are to have had a general drop on crime over the last few decades. Let’s not virtue signal ourselves into reversing that trend.)

BATHROOM WARS: I’m still waiting for the case of Grimm v. Gloucester County Board to be decided by U.S. Court of Appeals for the Fourth Circuit. This is the same case that was before the Supreme Court a few years ago. Back then it was called Gloucester County School Board v. G.G. But then the Trump Administration withdrew the Obama-Era guidance that told schools that they must assign transgender students to the bathrooms and showers they psychologically identify with rather than the ones suited to their anatomy.  The Supreme Court therefore sent the case back to the lower courts for reconsideration in light of guidance’s withdrawal.  The trial court at least continued to adhere to the Obama Administration’s position.

Will the case find its way back to the Supreme Court? That’s entirely possible. If it does, I plan to file a revised version of my amicus curiae brief.

Of course, it is possible that won’t be necessary. But I’m a born always-be-prepared-for-worst pessimist. The upside of that characteristic is that I had plenty of food in my pantry when the pandemic hit.

LOOK AT HER GO!  WHO’S THAT REALLY TALL GIRL WITH THE BROAD SHOULDERS AND THE …?:  The U.S. Department of Justice weighs in on the side of limiting girls’ sports teams to … uh … biological girls.

HERE WE GO AGAIN:  “Major U.S. Universities Ban Saying ‘Chinese virus.'” The University of California’s Council of Chief Diversity Officers says “[D]o not not allow the use of these terms by others.”

JOHN FUND:  Dump Biden, draft Cuomo?

WILL THE RESPONSE TO COVID-19 BE CITED AS A PRECEDENT BY CLIMATE CHANGE ACTIVISTS?:  You bet it will.  Indeed, it already has been.  This is from a blog piece in the London Review of Books:

If there is a silver lining to the Covid-19 pandemic, it is what it might mean for the climate crisis. Not only have attempts to control the virus led to a reduction in carbon emissions, they have also led to a significant shift in the way individuals, institutions and politicians discuss our responsibility to protect vulnerable groups in our societies.

By late last year, it seemed clear that decades of attempts to coax governments and business leaders into taking seriously the risks posed by the climate crisis were leading nowhere. Yet faced with the far more immediate threats posed by a global pandemic, states that for decades had been committed to neoliberal thinking have slowly begun to embrace such radically old-fashioned ideas as planning for the future, relying on scientific expertise, or calling on their constituents to make sacrifices in order to protect vulnerable members of society. …

…

… Perhaps, once the Covid-19 pandemic is finally over, governments may be ready to bring that wisdom to bear on the crisis of climate change.

I suspect we’ll be hearing this argument a lot.

TWO MEMBERS OF THE U.S. COMMISSION ON CIVIL RIGHTS ISSUE STATEMENT:

IT’S TIME FOR THE COMMISSION ON CIVIL RIGHTS TO STOP USING WORDS LIKE “RACISM,” “XENOPHOBIA,” “HATE,” AND “HATEFUL” SO INDISCRIMINATELY.

 On March 20, 2020, the U.S. Commission on Civil Rights issued a statement expressing “grave concern” and “alarm[]” over “recent demonstrations of violence and hate toward people of Asian descent.” It warns of a “growing anti-Asian racism and xenophobia.” For the reasons we will explain below, we declined to support that statement.

We agree, of course, that COVID-19 is no excuse for anyone to attack or insult individuals of Asian descent and that when such acts rise to the level of criminal behavior, law enforcement should immediately intervene. But that’s obvious to just about everyone in America. The rare exception is unlikely to read the Commission’s statement, much less be persuaded by it.

It is important to keep things in perspective. Given that the population of the United States is estimated to be over 330,000,000, the litany of incidents in the Commission’s statement is really quite small; most involve misbehavior by children or teenagers. Yes, a nine-year-old child in New Jersey was told by a classmate, “You’re Chinese, so you must have coronavirus.” But that’s why we send nine-year-olds to school; they’ve got a lot to learn. For adults to view the statement as hateful would be over the top. We’re talking about a child.

More serious is the case of the New York teenager who kicked an Asian-American man in the back, knocking him to the ground. Surely that is (and should be) a matter for the police. Fortunately, there is nothing to show this thuggish behavior represents a wave of racial violence.

Here is our biggest objection: The Commission make the ill-advised suggestion that referring to COVID-19 with terms like “Chinese coronavirus” is somehow fueling “[t]his latest wave of xenophobic animosity toward Asian Americans.” It is common to refer to infectious diseases by their geographic origin. Examples include Asian flu, Bolivian hemorrhagic fever, Brazilian hemorrhagic fever, Ebola, German measles, Japanese encephalitis, Lyme disease, Marburg virus, Middle East respiratory syndrome (MERS), Pontiac fever, Rift Valley fever, Rocky Mountain spotted fever, Spanish flu, Venezuelan hemorrhagic fever, and West Nile virus. In the case of Spanish flu, it was probably a misnomer. That disease likely originated in Kansas instead. But calling it the Spanish flu was never an indication that people hated Spaniards. It was simply a case in which the Spanish press reported on the flu extensively while the American press was preoccupied with World War I and subject to censorship. People therefore made the mistake of believing it originated in Spain.

It is counter-productive to hector the American people (or its leaders) about describing the COVID-19 as “Chinese” or as having originated in China. It did originate there. Ordinary Americans—of all races and ethnicities—who harbor no ill will toward anyone don’t like to have the U.S. Commission on Civil Rights imply that that they are fueling the flames of xenophobic animosity.   We can’t blame them. It is insulting.

Our colleagues on the Commission close their statement by writing under the current circumstances no American should be “ostracized solely because of their race or national origin.” That is certainly sensible enough. We would add that Americans should not be ostracized on account of false accusations that their conduct has been racist, xenophobic and hateful. The promiscuous use of those terms needs to stop.

Gail Heriot & Peter N. Kirsanow, Members, U.S. Commission on Civil Rights

SEEMS LIKE BAD TIMING TO ME, GIVEN THAT CALIFORNIANS AREN’T SUPPOSED TO LEAVE THEIR HOME:  The U.S. Commission on Civil Rights just voted 4-2 to condemn Trump’s January extension of its restrictions on entry to nationals of  “Burma (Myanmar), Eritrea, Kyrgystan, Nigeria, Sudan, and Tanzania.”

I think it means Kyrgyzstan, but whatever.

YIKES.  MY 40 MILLION FELLOW CALIFORNIANS AND I ARE ORDERED TO STAY HOME:  Here are the core sentences of the order from Governor Newsom:  “To protect public health, I as the State Public Health Officer and Director of the California Department of Public Health order all individuals living in the State of California to stay home or at their place of residence except as needed to maintain continuity of operations of the federal critical infrastructure sectors, as outlined at https://www.cisa.gov/critical-infrastructure-sectors.  In addition, and in consultation with the Director of the Governor’s Office of Emergency Services, I may designate additional sectors as critical in order to protect the health and well-being of all Californians.”

The order goes into effect immediately.

WHY CAN’T LIBERALS DO ARITHMETIC?:  And why don’t they know how many people live in the United States?  Power Line points out that Bernie Sander’s press secretary asserted on Twitter that 500 million Americans “go bankrupt from medical debt every year.”  Good grief.  That is far more bankruptcies than there are Americans.  Power Line points out that only about 750,000 personal bankruptcies occur annually from any cause.  I can add that the proportion of those that were caused in any real sense by medical debt is quite small (though it is common for bankrupt person to have some medical debt in their overall debt along with lots of other kinds of debt).  It’s tragic when medical debt leads to bankruptcy, though it’s worth pointing out that’s why we have bankruptcy–to spare people in that kind of situation from permanent destitution and debtors’ prison.  It isn’t a punishment for debtors; it protects them.  It’s woefully ignorant to believe it’s happening 500 million times a year.

HERE WE GO AGAIN: Almost 24 years ago, Californians voted to adopt Proposition 209, which amended the California Constitution to include the following prohibition: “The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.” (Full disclosure: I proudly co-chaired that campaign and spent a good deal of my time and money getting it adopted.)

Voters in several other states followed suit with Proposition 209 clones.

In the early years, Prop. 209 did a lot of good on campuses (as I discuss here). In more recent years, California state universities have learned how to get around it, but it still does some good in other areas, especially public contracting.

There have been many efforts to repeal it. And … well … here comes another one. There is just no end to it. I hope that, like last year’s efforts to repeal Washington State’s version of Prop. 209, this one is doomed to failure. But it will likely take organization and effort to ensure that it is.

Meanwhile, if you are hiding out from the coronavirus at home, now is the time to sit down and read my essay on the problem of “mismatch.”  Alas, that problem is at the root of a lot of what is wrong on on college campuses today.  Instead of trying to repeal Prop. 209, we ought to be enforcing it more vigorously.