Hello again, reparations

Ten years ago I wrote this piece for City Journal pronouncing slavery reparations dead as a national cause. Now, as Astead W. Herndon reports in the New York Times, presidential candidates are getting behind the word: Sens. Kamala Harris (D-Calif.) affirmed her support, and Elizabeth Warren (D-Mass.) “also said she supported reparations for black Americans impacted by slavery — a policy that experts say could cost several trillion dollars, and one that Barack Obama, Hillary Clinton, Bernie Sanders and many top Democrats have not supported.” Did I speak too soon?

One complication is that while candidates have begun using the word, it’s often to describe policies that wouldn’t fit the definition accepted up to now. For example, as I noted in the City Journal piece, beginning in the 1960s many programs were enacted aiding poor persons of all races, often conceptualized and argued for as an alternative to more explicit race-based reparations. Some of the candidates who now describe themselves as being for reparations are vague about whether they intend to go beyond support for new programs that are formally race-neutral. [Jeff Stein, Washington Post]

Higher education roundup

  • The less you know: new push to “de-bias” faculty recruiting by removing CVs and interviews from the process [John Morgan, Times Higher Ed/Inside Higher Ed on developments in Britain]
  • “You Can’t Make This Up: A Speech Code that Investigates Students for Discussing the Freedom of Speech” [University of South Carolina: Ilya Shapiro and Patrick Moran on Cato certiorari brief in Abbott v. Pastides]
  • “Sokal Squared” hoax runs into IRB (human subjects review) issues at Portland State, and it’s more complicated than you might think [Jesse Singal, New York]
  • “A Liberal Case for DeVos’s Reforms” [Lara Bazelon, New York Times] After initial resistance, ACLU moving to acknowledge merit of some objections to Obama-era Title IX procedure [Conor Friedersdorf, The Atlantic] Attorneys general from 18 states plus D.C. sign letter arguing against presumption of innocence for students accused under Title IX [same]
  • “Anti-Koch group tries to get hummus banned from university in BDS effort” [Zachary Petrizzo, The College Fix]
  • Monopoly bargaining privileges for faculty: vindication and hope after Janus [Charles Baird, Martin Center]

San Francisco housing stalled over “potentially historic laundromat”

A 75-unit housing development in San Francisco’s Mission District, a block from a BART station, is running into delay over what is termed a “potentially historic laundromat.” It’s a total mystery why housing is so expensive in the city by the Bay, with the average one-bedroom apartment said to rent for $3,258. [Adam Brinklow, Curbed via Derek Thompson]

Timbs v. Indiana: state forfeiture can violate Excessive Fines Clause

A unanimous Supreme Court ruling in Timbs v. Indiana confirms that state governments, like their federal counterpart, may not impose excessive fines. The ruling also holds that “at least some state civil asset forfeitures” violate the Excessive Fines Clause. “As a result, the ruling could help curb abusive asset forfeitures, which enable law enforcement agencies to seize property that they suspect might have been used in a crime – including in many cases where the owner has never been convicted of anything, or even charged. Abusive forfeitures are a a widespread problem that often victimizes innocent people and particularly harms the poor.” [Ilya Somin; ABA Journal]

Now keep your eye on the Privileges and Immunities Clause, advises Ilya Shapiro; Justice Gorsuch used a concurrence to signal that he is interested in revitalizing it, a position already held by Justice Clarence Thomas [Cato; see also Josh Blackman on Twitter]

February 20 roundup

  • Get me Civics, and make it an emergency: West Virginia legislature “moves to withhold judicial retirement benefits until state supreme court overturns a ruling” [Gavel to Gavel]
  • Do threats to publish intimate pictures of Jeff Bezos fall under provisions of criminal blackmail law? [Eugene Volokh]
  • Manuel Reyes, head of the Puerto Rico Food Marketing, Industry and Distribution Chamber, argues that policy shifts have heightened the costs of the Jones Act [Cato Daily Podcast with Caleb Brown, earlier]
  • Battle of the Ilyas: Ilya Shapiro vs. Ilya Somin on sanctuary city and state litigation [Federalist Society podcast]
  • “Most comprehensive study to date on the effects of voter ID argues that these laws have no effects on overall turnout or on the turnout of any group defined by race, gender, age, or party affiliation,” or on real or perceived fraud; results “cannot be attributed to mobilization against the laws” either [Enrico Cantoni and Vincent Pons, National Bureau of Economic Research] [via]
  • Worst Pigouvian tax idea of the year? Oklahoma lawmaker proposes taxing Uber surge pricing to combat DUI [Ryan Bourne]

The NYPD’s DNA dragnet

New York City police have employed the equivalent of DNA dragnets, combining voluntary with covert (e.g., grabbing a discarded cup) collection methods. Thus, before identifying a suspect in the Howard Beach jogger case, “the NYPD collected well over 500 DNA profiles from men in the East New York area….But things get worse from there. For those people excluded from the jogger case, the Office of the Chief Medical Examiner, the city’s crime lab, permanently keeps those profiles in their databank [with more than 64,000 others] and routinely compares profiles to all city crimes.”

In other words, cooperate with police by giving a DNA sample in order to help solve (or clear yourself in) some dreadful crime, and you’re in the database to nail for anything and everything else in future. “In this respect, [you] will be treated just like someone convicted of a crime.” And did you guess this? “Under their labor contract with the city, rank-and-file officers don’t give the lab their DNA, which means the lab can’t easily rule out possible crime-scene contamination.” [Allison Lewis, New York Daily News]

Regulation and administrative law roundup

  • Supreme Court could help rein in the administrative state by overruling Auer v. Robbins (1997), which directs courts to defer to agencies’ interpretations of their own regulations [Ilya Shapiro, Trevor Burrus, and William Yeatman on Cato amicus brief in Kisor v. Wilkie, earlier] “Does Kisor Really Threaten the Foundations of Administrative Law?” [William Yeatman]
  • “What Is Regulation For?” [video panel from Federalist Society National Lawyers’ Convention with Richard Epstein, Philip Hamburger, Kathryn Kovacs, Jon Michaels, moderated by Hon. Britt Grant] Plus, panel on the use of adjudication in place of rulemaking [Jack Beermann, Allyson Ho, Stephen Vaden, Chris J. Walker, moderated by Hon. Gregory Katsas; Antonin Scalia, “Making Law Without Making Rules,” Regulation magazine 1981]
  • “Businesses in regulated industries rely on the regulating agency’s advice to make decisions.” But if advice from agency staff can neither be relied upon for legal purposes nor be subject to judicial review, isn’t it worse than getting no advice at all? [Ilya Shapiro on Cato cert amicus brief in Soundboard Association v. FTC]
  • “Administrative Law’s Assault On Civil Liberty: Lucia Vs. SEC” [Margaret Little, Federalist Society, earlier]
  • Identifying regulations that disproportionately harm the poor [Cato Daily Podcast with Ryan Bourne, Vanessa Brown Calder, Diane Katz, and Caleb Brown]
  • Seek permission to innovate, or innovate first and then seek forgiveness? How startups manage regulators [Sam Batkins, Regulation reviewing Regulatory Hacking by Evan Burfield with J.D. Harrison] Sides tend to switch on this each time White House changes partisan hands, so now it’s the left-liberals who see a silver lining in agencies’ procedural ossification [Stuart Shapiro, Regulation]