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So the Trump administration has made an effort to limit "indirect" research costs, those research funds which institutions charge on top of a research grant to pay for expenses which cannot be attributed to an individual research project, for items like building maintenance, grant writing staff, and administrative staff. The new policy, effective February 10, 2025, caps the indirect cost rate at 15% for all NIH grants, both new and existing. People in my social circle are watching the court battle over this with baited breath. One of their institutions charges 55%, and another one charges 70% (which appears to be the legal maximum). From this perspective, 15% seems very very low, but it appears the average is around 27%.
I recently talked to some of my Korean researcher friends, and in Korea indirect costs are capped at 17% (and come out of the allocated grant money, so they are considered during grant proposal submission). Of that 17%, the institution even sets a few percent aside to give "miscellaneous funds" to Professors. My friend (a former Resident) said that these miscellaneous funds (which are completely unregulated) were critical to keeping medical professors on the job after an anti-corruption law banned them from taking "gifts" from patients: they were frequently spent on personal items, team dinners, and alcohol. In my experience they were used to purchase high-end computers for data analysis. But the point is that 17% leaves the institution with a surplus.
I'm left wondering if indirect costs in the US (now two to four times higher than those of Korea) are a result of perverse incentives. The NIH negotiates these after grants have been granted. If the US had counted these expenses against the grant value prior to grants being granted (as Korea does), would professors have been incentivized to lobby their institutions against administrative bloat?
I tried to find how these costs have changed over time, and it looks like they have risen by a few percent in the past decade, but every grantmaking agency has different numbers and it is a mess, with more variance between agencies than change over time.
Irregardless of whether Trump broke the law, this Biden appointed judge (a black Lesbian, what a surprise) is making a fool of herself and the law by blocking this with her TRO (temporary restraining order).
Firstly, monetary damages cannot be irreperable harm, and this is a settled legal principle for hundreds of years. You don't need to cite any Supreme Court case because it's a core principle in common law, in every US court not just federal, and every lawyer and judge knows this. And without irreperable harm you can't have a TRO. https://www.law.cornell.edu/wex/irreparable_harm
Secondly, a TRO must have an end date. That's part of what makes a TRO temporary. So she clowned any illusion of being a real judge by writing this:
https://storage.courtlistener.com/recap/gov.uscourts.mad.280609/gov.uscourts.mad.280609.8.0_1.pdf
https://www.law.cornell.edu/rules/frcp/rule_65
This is a general principle, but there are always exceptions. Most of these involve judgment-proof defendants. Say Fred and Sam are having a dispute over a driveway Sam uses to access his business. Fred puts up concrete barricades on the disputed right-of-way, denying access to Sam or any customers, preventing use of the business. Sam cannot operate his business and sues Fred for trespass. Sam may be able to calculate that he's losing $5,000/day in revenue while the barricades are up; under the rule, he wouldn't be entitled to a TRO. Except any court would grant him one, because if the case takes a year to resolve, it's unlikely that fred will be able to come up with $1.8 million in damages.
This example is based on a case I actually dealt with a couple years ago except the defendant wasn't some random guy but a railroad (it was a dispute over a crossing agreement). I was still able to get a TRO, not because there was any question of the railroad's ability to pay damages but because I convinced the judge that my client couldn't afford the mortgage and ongoing maintenance costs to the property without the property generating any revenue. Damages would be cold comfort if the property were foreclosed on and he were forced into bankruptcy.
Another case I was peripherally involved with during my time in oil and gas involved a contractual dispute between Warren Steel and a coal company whose name I can't remember. (This is a grossly oversimplified version) Warren had an ongoing contract with the company that required them to deliver coal to the mill a few times a week. They were way behind on payments and owed hundreds of thousands of dollars. The coal company said they weren't getting any more shipments until they paid what was overdue. Warren sued the coal company for breach of contract arguing that future deliveries weren't conditioned on payment for prior deliveries. From here it gets a bit complicated. The typical remedy here would be for Warren to buy coal on the spot market and collect the price difference from the breaching coal company. Warren argued that their financial position was precarious (there was no denying this based on their payment history) and that they would be unable to secure credit to buy at sharply inflated spot market prices. If the coal company didn't make their next scheduled shipment, they wouldn't be able to make any steel, would have to shut down the mill, and any hope of them remaining operational would be gone. the court issued the TRO and told the coal company to make the delivery. In any event, Warren Steel filed for bankruptcy a few days later.
And who could forget the man himself, Donald Trump. If you remember, last year he was on the wrong end of a nine-figure civil judgment, and was told that if he wanted to stay the judgment pending appeal he would have to post a bond of $450 million within 30 days. This is about as clear-cut as it gets—he had $450 million in assets. If he posted the bond and won the appeal, he'd get the money back. So what's the problem? He successfully argued that since no insurance company would take real estate as collateral, he would have to liquidate it at fire sale prices, causing irreparable harm. The judge agreed and reduced the bond to something an insurance company could manage.
Most court orders aren't written by the court. If I'm asking for a TRO, I have a copy of the order with me and I hand it to the judge to sign if she decides to grant it. In most cases, you're asking for the TRO in motions court early in the process before the case is listed for trial and assigned a judge.After that it has to go to calendar control for them to schedule a hearing for a preliminary injunction. By law that hearing has to be within 14 days, but the judge who's signing it doesn't know when that's going to be; the upshot is that we put the 14 day max in the order.
In this case, the judge who issued the TRO wrote the order herself after the hearing had already been scheduled. She's hearing arguments tomorrow, after which, she'll either lift the order entirely or grant an injunction. There was no reason to put a specific expiration date because it's implied that she's going to lift it after the hearing.
Hmm point taken. You're definitely right about this.
Though for this particular case it seems that the motion for TRO wasn't well plead then, as they don't allege any concrete imminent harms such as losing your house or business. The motions all claim the possibility of disruptions to research operations as a result of the lost revenue, but stop short of pleading that it will happen. It's also especially dubious since these institutions are sitting on multi-billion-dollar endowments in the bank.
In this case I think an ex-parte TRO would be a stretch, because if that TRO needs to be turned into an injunction within 14 days, then $5,000 * 14 is only $70,000. Though since a PI still needs to show irreparable harm your point still stands. Well also I'm assuming this is state court so rule65 doesn't apply anyways.
I've never seen the order written like this, I've always seen an end date explicitly written. Since the hearing date is literally written in the paragraph above, it would be trivial to write it into the TRO order itself and save some legal ambiguity. What happens if the judge catches the rona and is out for a month? Does the illegal TRO stick until appeals smacks it down?
Also the federal government isn’t judgement proof unless they refuse to waive sovereign immunity
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