Ohio
Quantumfreakonomics
10mo ago
What is going on in Springfield, Ohio? 20,000 Haitian arrivals into a town of 60,000 seems insane, but the New York Times seems to back it up. I definitely don’t trust the NYT to give an honest portrayal of what the situation is like on the ground, but I don’t really trust a lot of the rumors going around Twitter either. I am seeing reports of Haitians killing the ducks at the park and eating them. There are even secondhand reports of Haitians eating pet cats.
What I am not seeing however is geolocated footage or images. How hard can it be to send a guy to the park to see if there are any ducks left? I am legitimately confused. None of this seems to make sense.
Felagund
1yr ago
What's Biden's survival path? Manifold's currently putting him at 41% chance, but I'm not seeing a likely way for that to happen.
Things look to me like:
-
Democrats express displeasure.
-
Biden refuses to drop out.
-
Democrats adjust convention rules to free up delegates.
-
Delegates reject Biden.
Are people thinking that Democrats won't allow the convention to nominate someone other than Biden? Or that delegates will vote for Biden?
Neither of those seem especially likely to me, especially when Kamala's an easy default option to unify around, even if her reputation is that she's unpopular. So I guess I'm not seeing where it's coming from. Are there convention rules that are problematic? I'm wondering whether them meeting early due to the Ohio deadline being earlier is a factor, but Ohio moved it back, so they can just cancel their early meeting, right?
But, this is not the best development for the Trump campaign.
JTarrou
2yr ago
Let's talk shitty policing!
The story starts back in August, when police (specifically, Adams County Sherriff's Department of Ohio) raided the home of Joseph "Afroman" Foreman on a warrant for narcotics and kidnapping. Perhaps they thought that the author of "Because I got high" would be a slam dunk, but they walked out with a couple roaches and a few grand in cash.
When they discovered a grand total of jack and shit, they were forced to return most of the money, except the stuff they stole.
Reason covered the case here:
And the man himself has weighed in with a music video that is all security footage of the raid titled "Will you help me repair my door?"
https://youtube.com/watch?v=oponIfu5L3Y
Down with qualified immunity, the legalized piracy known as civil asset forfeiture, and the self-funding militarized security state.
Epstein's Unanswered Questions
In a recent speech at the Turning Point USA conference, Tucker Carlson criticized the administration's recent closing of the book on the Jeffrey Epstein case. Carlson alleged that there was 'no answer' to his central question, namely how a "high school math teacher at Dalton" became a "billionaire" who owned the largest private residence in Manhattan "by providing accounting advice". Apparently, this is a question for which no answer has ever been provided. According to him, the truth is that Israel provided Epstein with his money.
In this comment, I will suggest
(1) By far the most plausible explanation for the source of Epstein's wealth
(2) Implausibilities in the Mossad agent theory
How Did Jeffrey Epstein Get Rich?
Jeffrey Epstein was born in the early 1950s to a working class family in Coney Island. He was an extremely smart student with a talent for maths and physics, and graduated high school two years early.
"He was just an average boy, very smart in math, slightly overweight, freckles, always smiling"
He pursued a major in math at Cooper Union and then at NYU (for just under three years), which he dropped out from, then took a job as a math teacher at Dalton aged 21. Dalton, which as I noted recently is the most progressive of Manhattan's old prep schools, was undergoing a time of transition. It had become co-ed a decade earlier, and - in the long aftermath of the sexual revolution of the 1960s - liberalized in other ways too. Unlike the city's public schools, subject to the strict demands of NY's extraordinarily powerful teachers' union, private schools can hire who they want.
In the 1970s, with the city in slow-motion financial crisis, tuition at elite private schools was also much lower than today, in inflation-adjusted terms about a quarter of the price. As youth became prioritized above all else and the peak of the baby boom in education led to increased demand for teachers (the boom itself had peaked in the late 1950s, meaning the mid-70s were peak demand for high schools) hiring a 21 year old NYU math dropout as a math and physics teacher was less unusual than it might seem to us. At Dalton, Epstein quickly made an impression and a name for himself as an intelligent, charming and handsome man.
Epstein was at Dalton for around two years. At parent-teacher conferences, a parent who knew Ace Greenberg of Bear Stearns (whose own children also studied at the school, but weren't taught by Epstein) was repeatedly impressed by him, thinking he was a smart and capable young man. When Epstein was fired by the school as enrollment numbers dropped, the city-wide spillover from the financial crisis continued to dent confidence in NYC and drive the UES wealthy out to the suburbs, he begged that parent for an introduction.
“This parent was so wowed by the conversation he told my father, ‘You’ve got to hire this guy,’ ” recalled Lynne Koeppel, daughter of the late Alan “Ace” Greenberg...Greenberg, son of an Oklahoma City women’s clothing store owner, rose from Bear Stearns clerk to CEO and had an affinity for employees he called “PSDs” — poor, smart and desperate to be rich.
As Bloomberg found, Greenberg offered Epstein a job - not as a trader, as has repeatedly been falsely alleged - but as a trading floor assistant, essentially a clerk to a trader. This was a clerical job that required no particular education, certainly not a degree (which wasn't necessary even for traders until the mid-1990s).
Epstein arrived on Wall Street in 1976 at an auspicious time, even though the decade was poor for equities. Options on securities had existed for centuries, but had always suffered from a fundamental problem with liquidity because they were largely specific bets made between individual buyers and sellers, with no standardized pricing, each arrangement a custom contract, traded over the counter if at all, with price discovery difficult. From 1973, the CBOE allowed the easy trading of options as a hedging tool which, coupled with the slow emergence of computerized valuation and ledger tools, allowed investment banks and brokerages to offer a much larger and ever more complex array of tools to their corporate clients. This tied into growing financialization that made intermediaries like Bear more important than ever after the end of the Bretton Woods system in 1971, the oil crisis and growing globalization of American firms who wanted to hedge huge swings in fuel prices, FX rates and so on.
Epstein made partner at Bear in four years. This was not unheard of at the time for an exceptionally talented young man. Even today, while progression is much slower in most of finance, it can still be that fast in booming sub-fields for very smart people. I know of someone at a leading quant firm who made partner at 28, in his first job, after four years, in the early 2020s. In 1981, Epstein was asked to leave Bear for a violation of securities law, possibly for failing to register products with the CFTC. Avoiding an expensive revenge-driven regulatory case would have been the firm's overriding interest, meaning that even for Epstein's brief partnership and overall tenure he would likely have received a decent payout.
In the early 1980s, Epstein floundered as an 'independent' financial consultant. A huge amount of drivel has been written about his activity between 1981 and 1986/1987. He used his looks to embark on brief relationships with a couple of heiresses he ripped off, most notably Ana Obregon. Her father had been caught up in the collapse of a short-lived firm playing games in the reverse repo business; Epstein merely facilitated her family's addition to an already-extant lawsuit with Chase, who were caught up in the affair, and who eventually repaid most of those involved. Epstein took a modest cut for pretty much no work. At around this time, Epstein socialized with some moderately influential people in New York. This was hardly surprising; he had met many advising corporate executives at Bear Stearns. They were also usually new money or outsiders to NYC; not UES generational New Yorkers.
Epstein told some of these people that he was a secret agent for the CIA, and perhaps Mossad. He told others he was deeply involved with Adnan Khashoggi, the world's richest man at that time, who had made his fortune taking a cut of arms deals between the UK, US and Saudi Arabia. Epstein had a fake gimmick Austrian passport, likely of a low quality and kind you could order in gray-area magazines at that time, and carried around a fake handgun sometimes, to impress party guests. He claimed he was an arms dealer, and lated claimed he was involved in facilitating Iran-Contra. There is no evidence of any of these claims, which are regularly repeated by the credulous. Khashoggi was famous at the time and Epstein was a compulsive liar; Khashoggi was one of the most photographed men in the world, his parties and debauchery attracted the world's press, he loved the media and was happy to appear on TV shows about the rich and famous. Epstein does not appear to have been part of his circle, just a liar who pretended he knew him.
My guess is that the occasional cut of a deal with the poorly informed, his payout from Bear and his winnings from Obregon tided Epstein over through to the mid 1980s. According to Vanity Fair, he lived in a small one-bedroom apartment; other sources suggest that he had no office at this time other than a temporary space he occasionally rented. Not exactly the lifestyle of an ultra-rich international arms dealer man of mystery.
The true source of Epstein's fortune dates to 1986, and his meeting with Les Wexner. Wexner had taken over his parents' clothing store in Ohio and built it into a chain of discount stores, which he then leveraged to buy and found a number of other store chains, including Victoria's Secret and Bath and Body Works. Wexner didn't need to move to New York (he could easily have run the conglomerate from Columbus, as he now does), but he chose to, and chose to buy a series of ever more extravagant homes in Manhattan as his fortune grew. In 1986, Wexner was an almost-50-year-old billionaire who had never been associated with any woman, was unmarried, and was widely considered a 'confirmed bachelor'. He was on magazine covers as 'the bachelor billionaire', with all the implicit subtext. There was rumor in both Columbus and Manhattan.
That year, Epstein met an insurance executive named Robert Meister on a flight from New York to Palm Beach. The insurance executive was taken in by Epstein's charm and bluster (no doubt full of stories about Khashoggi, international deals, arms, scandal) and invited him to an event also attended by Wexner after Epstein repeatedly showed up to his racquetball games and begged to meet Wexner. Epstein charmed Wexner, and within a year they were 'business partners', with Epstein increasingly directing Wexner's investments. It is impossible to do more than speculate here, but Wexner's business partner's thoughts, followed by some other anecdotes from the Vanity Fair piece:
Robert Morosky, who had been the vice chairman of The Limited [Wexner's holding company], was surprised Mr. Wexner took to Mr. Epstein so readily. “Everyone was mystified as to what his appeal was,” Mr. Morosky said.
Jeffrey said, ‘See all this stuff? I don’t need any of it. I could live in a tent. But Les gave this to me for a dollar. Les would do anything for me.’ ”
“Les would defer to him in any meeting…. Les would put his hand on Epstein’s shoulder.”
Wexner's own friends, according to several sources, believed that Wexner and Epstein were in a romantic relationship, and referred to him as "the boyfriend". Epstein denied he and Wexner had a sexual relationship in a filmed deposition.
Wexner and Epstein soon became virtually inseparable. They were an odd pair. Wexner was in his late 40s, with a round face and big ears. Epstein was in his early 30s and dashing—from the right angle he looked like Richard Gere. Wexner’s public image continued to grow after hiring Epstein. A 1989 Boston Globe profile that detailed Wexner’s rise reported that his September 1 diary entry that year read: “I finally like myself". Wexner’s physical appearance changed. A former Victoria’s Secret executive recalled Wexner dyed his hair. He hired a live-in personal trainer and adopted a new wardrobe. “Les would wear the tightest jeans you saw. I don’t know how he didn’t cut off blood supply to his private parts,” the former executive said.
In the early 1990s, well into his fifties, and at the urging of his elderly mother (who abused him in company meetings and was his unspoken co-CEO) Wexner married a London-based corporate lawyer in her early 30s. Epstein wrote the prenuptial agreement. The couple moved back to Ohio and had four children. Wexner stayed close with Epstein, and gave him control over his finances and investments. Even very rich people regularly make terrible financial decisions, especially when love is involved. Anyone who has been in the presence of that rare, 99.9th percentile charisma knows that very few people are immune to it, no matter their usual sobriety.
Merritt recalled once asking Wexner why Epstein was so well compensated. “Les just said, ‘Because I got more money than I can ever spend,’ ” said Merritt. “Les gave him free rein over his checkbook.” In 2019, the Wall Street Journal reported Epstein earned $200 million from Wexner. Merritt puts the number at $400 million.
The bond between an older and younger man, protege and elder, can be particularly strong in cases. Unlike some thieves, Epstein didn't even take all the money, because as will become clear, he didn't need to.
Behind the BS, Wexner was Epstein's only ever client. Which brings us, at long last, to the money. Epstein 'stole' $46m from Wexner according to Wexner, and made at least tens of millions more in asset management fees in which he was paid (as is common practice) a percentage of the money he made his client. Wexner’s business was already turning over $3bn a year by the early 80s, with exceptionally high margins for the already lucrative clothing retail business. Of course, Epstein didn't invest the money himself. Instead, he just handed it (as was made clear in the recent Jes Staley case) to JP Morgan and a handful of other banks and firms, who did the work for him. Fortunately for him, Epstein was again lucky. The bull market of the age mean that even an index fund for the S&P 500 would have returned almost 500%, meaning that Epstein's loot, plus his share of Wexner's own gains, could easily have amounted to over a billion dollars by the early 2000s in a 2-and-20 arrangement, without Epstein doing anything more than acting as a middleman between private wealth teams at a few big Wall Street banks and his dear friend Les.
Was Jeffrey Epstein an Agent for Israeli Intelligence?
It is important to be clear about the specific nature of this allegation. By the late 1990s, many of the social connections Epstein had fantasized and lied about the in the 1980s were real. He really did know Bill and Hillary Clinton, Oprah, and various other important and famous people. He was not the most well-connected man in the country, and there were social scenes in which he was less widely known, but the combination of his relationship with Maxwell, who had been raised into the British elite and had connections he didn't, in addition to Wexner's money, had been good for him. Now well-connected in Washington and internationally, in part because Wexner had introduced Epstein to his social club of Zionist activist billionaires (the Lauder family etc) who Epstein had tried and failed to pitch his 'financial advisory' services to, Epstein made friends with Ehud Barak, the Labor Prime Minister of Israel. Barak's influence in the Israeli state was already declining; he would be the final left-wing Israeli leader.
It is to me entirely plausible that Epstein trafficked gossip to Mossad, and likely also American intelligence agencies. It is possible, although unlikely, he was paid for it, and I suspect anyone who did pay would have found out, as so many of Epstein's associates did over the course of his life, that he was full of shit, but it may have happened. This is different, however, from the Israeli state being the source of his wealth and power. I will summarise some reasons here:
-
The substantial majority of those alleged to have been victims of Epstein's supposed blackmail scheme were Zionist Jews. Consider this logically. You do not need to blackmail rich Jewish-American billionaires to support Israel. They will do it for free. The idea of Israeli intelligence spending a huge percentage of their budget on destroying the goodwill of their number one supporters who already spend billions lobbying for Israel is absurd. Step One: Gather prominent people who already support Israel, often fervently. Step Two: Film them having sex with underage prostitutes. Step Three: Tell them to keep supporting Israel Or Else... Anyone who approves that operation likes burning money.
-
Even the gentiles allegedly involved in the scheme had no natural hostility toward Israel. Most were old-school WASPs uninvested in either the socialist or Islamic angles of Palestinian liberation. Almost no Muslims were involved. If you were Mossad and wanted to blackmail people ambivalent or hostile toward Israel into supporting it, you'd target rich Chinese, Indians, gentile Russians, and above all rich Sunni Muslims, particularly in the Gulf. You would not target Alan Dershowitz. The blackmail argument betrays a fundamental lack of understanding of the basic purpose of blackmail. It also betrays an understanding of diaspora Jewish politics and Mossad's influence over it. Most critically, those rich Americans who were more skeptical of Israel do not appear to have associated much with Epstein (likely because that isn't really their crowd). Epstein bragged about working for intelligence agencies; that is the one thing you don't want your agent of blackmail to be doing.
-
Epstein had no ingrained loyalty to Israel beyond that he was ethnically Jewish (like 7 million other Americans), and so there is no good reason for Mossad to trust him with one of the most expensive intelligence operations in history. There were and are plenty of charismatic Israeli-American businessmen, who have served in the army and who in some cases have connections to intelligence, that Mossad could would have prioritized for an overseas influence operation. Many were - unlike Epstein - actually successful on Wall Street or in other industries. A random conman and compulsive liar who had been fired from every real job he ever had isn't a good target for this kind of operation. It is telling that while "Mossad wanted to blackmail Americans into doing Israel's bidding" sounds like a clever plan, nobody can even present a compelling case for why Jeffrey Epstein's inviting of various influential pre-existing zionists into his social circle would actually serve the goals of that plan. Was there some great mass of principled Anti-Israel (largely Jewish, presumably) Americans just waiting to go full BDS if Mossad didn't have the sex tapes? A poor argument at best.
-
Much of the argument for Epstein's supposed connections to Israel involves either Ehud Barak (whose influence in the country was again on the decline, who was PM for a very brief period, and who was 'collected' by Epstein as just another famous political or media figure to show off at events like the Clintons, Prince Andrew etc) or an alleged connection to Robert Maxwell. There is no evidence that Epstein ever met Robert Maxwell beyond hearsay by anonymous callers into a popular Epstein grifter podcast that they 'supposedly' met in London in the late 1980s. Again, no photographs exist, no record of them being at the same social event or party exists (interesting given that there are tens of thousands of pictures of Epstein at big social events over the last thirty years; he didn't shy away from a camera, and neither did Maxwell). Maxwell was considered a hero by Israeli intelligence because he facilitated weapon and plane part shipments, illicitly, from the Soviet Union, France and elsewhere in the early years of Israel's existence. He was badly connected in America, such that his takeover of the New York Post was a desperate attempt to try to lobby for a bailout for his failing media empire, which collapsed upon his death.
oats_son
9mo ago
I want a vice presidential debate top level post.
So JD Vance sounded pretty good here overall. If you ask me, both speakers were miles ahead of their presidential candidate counterparts, which is sad. There is probably a lot that can be read from the debate, but I did want to discuss a couple moments making waves on other social media. First I will mention I was surprised to hear JD Vance support nuclear energy, and I will also mention a lot of people were probably unhappy with how he handled the gun control/mass shooting question. But back to the two I wanted to mention
The first such moment originated from a fact check:
JD VANCE: ...Now, Governor Walz brought up the community of Springfield, and he's very worried about the things that I've said in Springfield. Look, in Springfield, Ohio and in communities all across this country, you've got schools that are overwhelmed, you've got hospitals that are overwhelmed, you have got housing that is totally unaffordable because we brought in millions of illegal immigrants to compete with Americans for scarce homes...
Tim Walz responds to his statement, and then a debate moderator comes in with this:
MB: Thank you, Governor. And just to clarify for our viewers, Springfield, Ohio does have a large number of Haitian migrants who have legal status. Temporary protected status. Norah.
DV: Well, Margaret, Margaret, I think it's important because…
MB: Thank you, senator. We have so much to get to.
NO: We're going to turn out of the economy. Thank you.
JDV: Margaret. The rules were that you guys weren't going to fact check, and since you're fact checking me, I think it's important to say what's actually going on. So there's an application called the CBP One app where you can go on as an illegal migrant, apply for asylum or apply for parole and be granted legal status at the wave of a Kamala Harris open border wand. That is not a person coming in, applying for a green card and waiting for ten years.
MB: Thank you, Senator.
JDV: That is the facilitation of illegal immigration, Margaret, by our own leadership. And Kamala Harris opened up that pathway.
MB: Thank you, Senator, for describing the legal process. We have so much to get to.
TW: Those laws have been in the book since 1990... a few more exchanges continue before mics get cut
I will cut it off there to not balloon this post. You can read the transcript here.
It seems many blue tribers saw him complaining about a fact check and seeing a win. Why would you complain about fact checking other than if you were lying? This is another example going back to Scott's post about the media rarely lying. Hey, they're temporary asylum seekers, so since they were allowed in with little hindrances to speak of, they're legal. Fact checked. This is an example of why I tend to dislike fact checking in a debate. It introduces an opportunity to use unfavorable framing on an opponent with lawyerspeak on technically true things. Let the candidates do it themselves if they want.
Next up, the January 6th and failure to concede the election:
TW: January 6th was not Facebook ads. And I think a revisionist history on this. Look, I don't understand how we got to this point, but the issue was that happened. Donald Trump can even do it. And all of us say there's no place for this. It has massive repercussions. This idea that there's censorship to stop people from doing, threatening to kill someone, threatening to do something, that's not censorship. Censorship is book banning. We've seen that. We've seen that brought up. I just think for everyone tonight, and I'm going to thank Senator Vance. I think this is the conversation they want to hear, and I think there's a lot of agreement. But this is one that we are miles apart on. This was a threat to our democracy in a way that we had not seen. And it manifested itself because of Donald Trump's inability to say, he is still saying he didn't lose the election. I would just ask that. Did he lose the 2020 election?
JDV: Tim, I'm focused on the future. Did Kamala Harris censor Americans from speaking their mind in the wake of the 2020 COVID situation?
TW: That is a damning. That is a damning non answer.
Once again, there is more to this exchange than that. I said earlier that they had good performances, and I'll go further here and say that JD Vance had a pretty great night. I'd never heard him speak before and he sounded very well spoken, very well informed, and brought up many issues that I so dearly wished that Donald Trump would have brought up, like specifically naming the asylum system and mentioning the partial birth abortions allowed in Minnesota (I noticed Tim Walz's denial was not fact checked). That is to say, JD Vance is competent and might have won against Kamala Harris, representing a return to civil debates and "normal" politicians, despite the "weird" allegations.
But he is really dragged down on this issue. It's lame he has to defend election denial claims in the first place, and leave room for challenging more later. I know many of you have strong feelings on the truthfulness of the claims. I will say this: if someone goes and makes those claims, they shouldn't run again. That is very powerful ammo for the other side. And it's far from the only ammo. I am very disappointed with the rhetoric Trump throws around. His lashing out against Taylor Swift reads as totally pathetic. And it is sad to see someone with as much talent as JD Vance have to try to slip around all this crap coming at him, from both Tim Walz, the debate moderator, and untold amounts of unhappy people on Twitter.
It's Different When We Do It, Chapter 27
or
Did I Just Get Trolled?
tw: old news, unapologetic whataboutism
Steven Levitsky and Lucan Way have a free essay at the (reportedly centrist!) Foreign Affairs: "The Path to American Authoritarianism: What Comes After Democratic Breakdown." (Archive link.) You may notice the URL has "trump" in it, despite that word not appearing in the title. Curious.
But wait--who are Steve Levitsky and Lucan Way? After all, one can scarcely throw a cursor across a website these days without hitting, say, six or seven hyperlinks to "think pieces" about Trump, fascism, fascist Trumpism, or even Trumpist fascism. But never fear--this is no Average Andy/Joe Sixpack collaboration. This is professional work by a team of scholars whose most famous contribution to the canon of political scholarship is the term "competitive authoritarianism." What, you may ask, is competitive authoritarianism? Read on!
Steve Levitsky, according to his employer (Harvard University, naturally), is a
Professor of Latin American Studies and Professor of Government and Director of the David Rockefeller Center for Latin American Studies at Harvard. He is Senior Fellow at the Kettering Foundation and a Senior Democracy Fellow at the Council on Foreign Relations. His research focuses on democratization and authoritarianism, political parties, and weak and informal institutions, with a focus on Latin America.
His focus is not exclusive--he also writes on Israel policy while calling himself a "lifelong Zionist" (admittedly, in an article endorsing something like BDS)--but his interest in Latin America is apparently more than skin-deep:
Levitsky is married to Liz Mineo, a Peruvian journalist with degrees from the National University of San Marcos and Columbia University who currently works at The Harvard Gazette.
Lucan Way is no less distinguished. Well, maybe a litte less--the University of Toronto is not even the Harvard of Canada, much less the Harvard of, well, Harvard. But his title--his title! He is literally a Distinguished Professor of Democracy. Where Levitsky's focus is Latin America, however, Way's might best be described as "Cold War and Cold War adjacent." He credits at least some of that interest to family ties to historical events:
My stepfather's family were Jewish socialists, and his grandfather, Henrik Ehrlich, was a Menshevik during the 1917 revolution. This familial link to such a pivotal historical moment gave the chapter on Russia a deeper, more personal resonance.
This is an academic power couple, right here. Get one expert on authoritarianism in the New World, one on authoritarianism in the Old World, and baby, you've got a stew going! A book stew. An article stew. A bottomless cornucopia of cosmopolitan political commentary and analysis. Their 2010 text, "Competitive Authoritarianism: Hybrid Regimes after the Cold War," focuses on democratization (or its lack) under authoritarian regimes. David Waldner gave a blurb:
Regimes that blend meaningful elections and illicit incumbent advantage are not merely resting points on the road to democracy; Levitsky and Way guide us along the multiple paths these regimes can take and provide powerful reasoning to explain why nations follow these distinct paths. This deeply insightful analysis of an important subset of post-Cold War regimes is conceptually innovative and precise, empirically ambitious, and theoretical agile, moving fluidly between international and domestic causes of regime dynamics. Read it to understand the dynamics of contemporary hybrid regimes; then read it again to appreciate its many lessons for our general understanding of regime change.
So: you've literally written the book on how democracies are (or are not) born. What are you going to do next? No, no, you're not going to Disneyland--you're going to witness the election of Donald Trump and stop telling people that you study the birth of democracies, but instead the death of democracies. From the Amazon page for Levitsky's (but not Way's) How Democracies Die:
Donald Trump's presidency has raised a question that many of us never thought we'd be asking: Is our democracy in danger? Harvard professors Steven Levitsky and Daniel Ziblatt have spent more than twenty years studying the breakdown of democracies in Europe and Latin America, and they believe the answer is yes.
That's the preliminaries. This week, Levitsky and Way published an article, and I have to say, I found it... kinda convincing? Except, I couldn't help but Notice some things that gave me pause. The thesis of the piece, as I mentioned, was that the United States is headed toward "competitive authoritarianism." The article provides a small explainer:
The breakdown of democracy in the United States will not give rise to a classic dictatorship in which elections are a sham and the opposition is locked up, exiled, or killed. Even in a worst-case scenario, Trump will not be able to rewrite the Constitution or overturn the constitutional order. He will be constrained by independent judges, federalism, the country's professionalized military, and high barriers to constitutional reform. There will be elections in 2028, and Republicans could lose them.
But authoritarianism does not require the destruction of the constitutional order. What lies ahead is not fascist or single-party dictatorship but competitive authoritarianism--a system in which parties compete in elections but the incumbent's abuse of power tilts the playing field against the opposition. Most autocracies that have emerged since the end of the Cold War fall into this category, including Alberto Fujimori's Peru, Hugo Chávez's Venezuela, and contemporary El Salvador, Hungary, India, Tunisia, and Turkey. Under competitive authoritarianism, the formal architecture of democracy, including multiparty elections, remains intact. Opposition forces are legal and aboveground, and they contest seriously for power. Elections are often fiercely contested battles in which incumbents have to sweat it out. And once in a while, incumbents lose, as they did in Malaysia in 2018 and in Poland in 2023. But the system is not democratic, because incumbents rig the game by deploying the machinery of government to attack opponents and co-opt critics. Competition is real but unfair.
(As an aside, Way seems to think India is doing alright, actually? Not sure where that fits in with the above but, co-authored pieces do sometimes result in these little puzzles.)
What actually struck me first about this description was my memory of posters here in the Motte discussing "Brazilification," the process by which the U.S. is, as a result of economics, immigration, and identity politics, gradually adopting the political norms of South and Central American nations. But my experience has been that it is usually more conservative, even arguably nationalist people expressing this concern. While Levitsky and Way do not use the term "Brazilification," they definitely seem to be placing the United States on that trajectory.
They elaborate on the problem at length:
Competitive authoritarianism will transform political life in the United States. As Trump's early flurry of dubiously constitutional executive orders made clear, the cost of public opposition will rise considerably: Democratic Party donors may be targeted by the IRS; businesses that fund civil rights groups may face heightened tax and legal scrutiny or find their ventures stymied by regulators. Critical media outlets will likely confront costly defamation suits or other legal actions as well as retaliatory policies against their parent companies. Americans will still be able to oppose the government, but opposition will be harder and riskier, leading many elites and citizens to decide that the fight is not worth it.
This is where I started to wonder, just a little, whether I was being trolled. While Trump's second term has indeed set a record pace for executive orders, Joe Biden's early flurry of dubiously constitutional executive orders was a greater departure from the norm. Most readers here will be well-acquainted with the IRS targeting of conservative groups. Many will also be aware of the time regulators inappropriately targeted the NRA. Conservative media outlets faced expensive defamation lawsuits (losing some, winning others). The fit with the Biden administration just seems too close in this paragraph, to be pure coincidence... but what am I supposed to conclude from that? Am I supposed to be doing a Straussian reading?
The piece continues:
[M]uch of the coming authoritarianism will take a less visible form: the politicization and weaponization of government bureaucracy. . . . Even in countries such as the United States that have relatively small, laissez-faire governments, this authority creates a plethora of opportunities for leaders to reward allies and punish opponents. No democracy is entirely free of such politicization. But when governments weaponize the state by using its power to systematically disadvantage and weaken the opposition, they undermine liberal democracy. Politics becomes like a soccer match in which the referees, the groundskeepers, and the scorekeepers work for one team to sabotage its rival.
Republicans have long complained against the weaponization of government against conservatives, and Democrats have long ignored those complaints. Whether it's a county clerk jailed for refusing to issue same-sex marriage licenses or the throw-the-book-at-them attitude toward January 6th protesters, conservatives regularly find the scales of justice thumbed against their interests. Similarly-situated Democrats need fear no prosecution at all.
Levitsky and Way have more to say about this sort of thing:
The most visible means of weaponizing the state is through targeted prosecution. Virtually all elected autocratic governments deploy justice ministries, public prosecutors' offices, and tax and intelligence agencies to investigate and prosecute rival politicians, media companies, editors, journalists, business leaders, universities, and other critics. In traditional dictatorships, critics are often charged with crimes such as sedition, treason, or plotting insurrection, but contemporary autocrats tend to prosecute critics for more mundane offenses, such as corruption, tax evasion, defamation, and even minor violations of arcane rules. If investigators look hard enough, they can usually find petty infractions such as unreported income on tax returns or noncompliance with rarely enforced regulations.
Tax evasion, you say? As for minor violations of arcane rules and rarely enforced regulations, well, the whole "Trump committed a felony" charade in New York was recognized well in advance as "novel" and "built on an untested legal theory."
The argument continues!
Moreover, much of the Republican Party now embraces the idea that America's institutions--from the federal bureaucracy and public schools to the media and private universities--have been corrupted by left-wing ideologies. Authoritarian movements commonly embrace the notion that their country's institutions have been subverted by enemies; autocratic leaders including Erdogan, Orban, and Venezuela's Nicolás Maduro routinely push such claims. Such a worldview tends to justify--even motivate--the kind of purging and packing that Trump promises.
Why would the Republican Party embrace the idea that America's institutions have been corrupted by left-wing ideologies? After all, just 63% of senior executives in government posts are Democrats; only 58% of public school teachers identify as Democrat; fully 3.4% of journalists identify as Republicans, and the ratio of liberal to conservative college professors is a measly 17 to 1!
I guess "believing facts about the ideological makeup of our country's institutions" qualifies as authoritarian, now?
There's more to the article--I invite you to read it. But maybe some of you want to ask, in total exasperation, "What difference, at this point, does it make?" Maybe none! I am not here to do apologetics for Trump. I was just really struck by the idea that this article could have been written, almost word for word, about Biden, or even Obama. Maybe Bush! Maybe others--FDR for sure, right? But I can find no evidency of Levitsky or Way ever actually noticing, or worrying, about American competitive authoritarianism, until Trump. They think he's special. I don't think he's special! I think that, so far, he has actually committed far fewer of the sins on their list, than Biden did. That doesn't mean I endorse Trump's actions, so much as I am confused that a couple of highly-credentialed experts on the matter only seem to recognize American authoritarianism when it is coming from their right (or, more accurately, even when it might eventually be coming from their right).
Aside from that, I don't see any obvious problems with the picture that they paint. Having pundits on both sides of the aisle say similar things about our nation's political trajectory serves to increase my worry that "Brazilification" might be a real thing, and makes me wonder how quickly it might happen, and how seriously I should take the possibility.
(Insert butterfly meme: is this authoritarianism? Insert spaceman meme: always has been.)
Frequent_Anybody2984
1yr ago
I've been thinking about Indians today. In my current management position in tech, I deal with a lot of Indians. On one hand, Indians are some of my most trusted colleagues and friends who I rely on who have a CS degree from a legit US college like University of Colorado Boulder or Ohio State. These people are the best and I love working with them. These are people who went to school in the US and are legit. Not only that, but my favorite two teachers in college in math and CS were both Indians who taught CS.
On the other hand, the Indians we hire as support are absolute trash. You compare them to Philipno or Eastern European people we hire as support, and they are so bad. The funny thing is that the Indians that are in the US are our best people for support. Obviously, there is a massive selection bias, but what the hell is going on with this?
I actually have a real world example. I worked at a telecom company as a software engineer and most of the managers were former Army or Air Force people. The majority of the people in the US who were doing support are/were Indian. But these people were Indians in America and everyone liked them and they all eventually got promoted. But the overnight people in India were again absolute trash.
What is going on in India with their leadership? Why are Indians so bad in India but ones that come hear and get a taste of American corporate structure so good? I know this is probably a best fit for the questions thread, but this legitimately puzzles me.
And obviously Indian-Americans I don't include in this. They are just like all other Americans.
Eetan
1yr ago
Since religion is also part of culture wars, it is time for sharing some latest religious culture war battles, this time on Judeo-Christian front, originating from the crucified bird site.
1/ Case of Lizzie Marbach
Lizzie Marbach, Republican and anti abortion activist from Ohio, person with 7k followers and otherwise not notable, posted this.
There's no hope for any of us outside of having faith in Jesus Christ alone.
This is Christianity 101, this is exactly what Christian is supposed to say and believe. There is no reason for anyone to be surprised.
Except Max Miller, Jewish Republican representative of Ohio with 52k followers who was not amused.
This is one of the most bigoted tweets I have ever seen
Mega dead bird storm ensued, and many people came to Lizzie's side to support her.
Including Ilhan Omar.
Things went so far that Max Miller was forced to apologize.
GOP lawmaker apologizes for ‘religious freedom’ tweet
But, nevertheless, Lizzie Marbach lost her job.
By sheer coincidence, Miller’s wife, Emily Moreno Miller, sits on the board of Ohio Right to Life.
This thing will continue, and it is not looking good for official GOP.
2/ Case of Darryl Cooper, rather lighter one.
Darryl Cooper, known as Martyr Made on the interwebs, substacker, podcaster on several sites and dead birder with 173k followers.
So this is rather important person, in internet terms, who suddenly decided that this is the time, of all things, to preach to Jewish people and convert them to Christianity.
It turned out that lot of his followers are Jews who do not appreciate being evangelized, especially by such D- apologetic piece. Massive dead bird storm ensued, and DC doubled, quartupled and octupled his efforts.
Darryl Cooper himself seems to be rather unorthodox Christian of somewhat Marcionite tinge. This makes the whole thing more confusing, what exactly are his Jewish followers supposed to convert to?
What have these cases in common? They illustrate the difficulty of actual interfaith cooperation between sincere believers in different faiths. If you really believe in truth of your religion, it is realy hard to desist from preaching and evangelizing, and even harder to do not take offence if you are (or perceive to be) preached at and evangelized by your fellows.
HaroldWilson
3mo ago
Is the economy good?
This takes the cake for the biggest load of nonsense I have ever read. It blusters a lot with only a few actual points made in defence of the notion that government economic statistics failed to capture true economic conditions post-Covid, all of which are very silly indeed.
My colleagues and I have modeled an alternative indicator, one that excludes many of the items that only the well-off tend to purchase — and tend to have more stable prices over time — and focuses on the measurements of prices charged for basic necessities, the goods and services that lower- and middle-income families typically can’t avoid. Here again, the results reveal how the challenges facing those with more modest incomes are obscured by the numbers. Our alternative indicator reveals that, since 2001, the cost of living for Americans with modest incomes has risen 35 percent faster than the CPI. Put another way: The resources required simply to maintain the same working-class lifestyle over the last two decades have risen much more dramatically than we’ve been led to believe.
In the first place I am disinclined to give this any credence because their calculations are very opaque. Even if you got to their website the 'data' section and 'white paper' for their 'True Living Cost' don't seem to give their actual weights or the changes in weightings (other that impressionistic statements like saying that 'luxuries' have been deweighted). However, even if I could trust their numbers it doesn't at all resolve the 'vibecession' question because based on TLC the Trump years were ones of economic decline too. However, the economic discourse in those years was uniformly positive. So what gives?
If you filter the statistic to include as unemployed people who can’t find anything but part-time work or who make a poverty wage (roughly $25,000), the percentage is actually 23.7 percent. In other words, nearly one of every four workers is functionally unemployed in America today — hardly something to celebrate.
Aside from the fairly preposterous gambit of saying that we can count some people in full-time employment as unemployed if their wage is too low (words have meanings, if you want to talk about wages then just do, don't crowbar it in to unemployment figures). More importantly though, what you will see again is that his 'true' unemployment figure tracks exactly the common U-3 figure over the years. So again it's totally worthless in explaining post-Covid dissatisfaction because the post-Covid 'true' rate was actually the lowest it has ever been since his data series starts in the 90s.
Here, the aggregate measure of GDP has hidden the reality that a more modest societal split has grown into an economic chasm. Since 2013, Americans with bachelor’s or more advanced degrees have, in the aggregate, seen their material well-being improve — by the Federal Reserve’s estimate, an additional tenth of adults have risen to comfort. Those without high school degrees, by contrast, have seen no real improvement. And geographic disparities have widened along similar lines, with places ranging from San Francisco to Boston seeing big jumps in income and prosperity, but places ranging from Youngstown, Ohio, to Port Arthur, Texas, falling further behind. The crucial point, even before digging into the nuances, is clear: America’s GDP has grown, and yet we remain largely blind to these disparities.
This is insultingly dishonest. Why does he say 'since 2013' in an article about the post-Covid economy? Because the trend doesn't hold true - after over a decade of sharply rising inequality, the 2021-23 period was actually saw bottom quintile income rise as a proportion of top quintile income.
This article is utterly irrelevant to post-Covid economic perceptions. What is might prove, if one believes the statistics, is that Americans ought to have been pessimistic about the economy throughout the 90s, 2000s and 2010s as well as post-Covid. But they frequently weren't. It still doesn't answer the question of why Americans get specifically upset in the post-Covid period.
What is a woman?
Couldn't resist just dwelling on this for a second too. Now, obviously no-one has to buy into avant-garde views of gender/sex, but to be simply unable to entertain the plausibility of a scheme of gender which includes trans women among women betrays a quite remarkable lack of intellectual imagination, and, frankly, intelligence.
This is talk radio 'why are my enemies all so thick' slop. Take it elsewhere.
Outlaw83
10mo ago
So, there's some talk downthread about Springfield, Ohio, Haitian immigrants and such. Putting aside I guarantee in the late 19th century there was in fact plenty of examples of massive population changes, even in more rural parts of the country. Ironically, many of the same people who put forth those population changes are now the ones scared of immigration, so in 50 years, as is American tradition, these Haitian immigrants will be saying we shouldn't be letting in the Bangladeshi's or whomever.
But, the interesting thing is the questions about "why" anybody puts up with them and well, at least according to local business owners, because they're more likely to show up to do the job and not fail a drug test than the righteous pure American's currently living there.
https://youtube.com/watch?si=nke3DETnGvcaAHE4&v=FA80DOcJnu8&feature=youtu.be - Youtube video
https://x.com/otis_reid/status/1833578554778374462 - Quote from the factory owner.
Of course, 2016 J.D. Vance would probably agree with this factory owner about the get up 'n' go of this socioeconomic group of people instead of defending them from economic competition from supposedly mentally deficient Haitians.
Now, to quote a lot of Twitter, it is true the Haitians are ruining that community's traditions, by actually getting to work and not showing up high.
Hoffmeister25
American Bukelismo Enthusiast
1yr ago
The responses by various commenters here reveal severe contradictions at the heart of “the case for Trump”. I think that this profoundly confused tweet by Martyr Made is illustrative.
People underestimate (or are not in a position to understand) how powerful it is for people to see Trump being attacked by the same people who have been maligning them in media and politics for years. Critics can say that that Trump is not a true enemy of the Establishment since he did x, y, or z, but it’s obvious to Trump supporters that the same powerful people who hate them also hate Trump, and that they hate Trump for taking their side.
I remember one middle-aged woman somewhere in Ohio being asked why she supported Trump. Was it his immigration policy, trade policy, what was it? She said: “Because he sticks up for us.”
It’s like the cool kids - the varsity QB, the homecoming queen, etc - sitting in the front of the class, forever bullying and mocking the “losers” in the back of class, who don’t play sports or cheerlead because their families are poor and they have to work after school. One day, one of the offensive linemen from the football team picks up and moves to the back of the class and starts giving it back to the cool kids. All the cool kids attack him, but he doesn’t care, he’s from their world and knows they’re nothing special, and anyway, they can’t threaten him because he’s too big, so he just keeps giving it back to him on the losers’ behalf. That guy would be a folk hero to the kids in the back, no matter how much of an obnoxious, vulgar buffoon he might be.
The kids in the front of the class - i.e. a pretty blonde woman who glides through life with door after door inexplicably opening before her - will never get it. They will always assume evil or irrational motives behind the linemen’s move, and they’ll imagine that the kids in back only support him out of jealousy and resentment toward the cool kids.
In this framing, Trump is the champion of the weird, socially-unpopular kids - the ones shut out of bourgeois normal society. The jocks and the pretty girls snub and bully them, but by banding together in a coalition with disaffected members of the social elite who have become awoken to their plight, they can launch a liberatory strike against the privileged upper crust who have historically marginalized them.
This is textbook leftism! This is literally the ur-narrative of the cultural and political left. It’s also the opposite of reality. Blonde jocks and rich cheerleaders are one of the core voting constituencies for Donald Trump! The weird alienated kids who got bullied in school, meanwhile, are a core Democrat constituency! One bloc of Trump voters are now apparently attempting to re-brand themselves, or re-contextualize themselves, as oppressed victims - the marginalized Other.
However, this is blatantly at odds with the original core appeal of Trump, which is that he was a champion of normal, well-adjusted, classic and confident America, here to take the country back from the freaks and faggots and pencil-necks who have essentially usurped control through subterfuge and used that power to resentfully force their unpopular obsessions on the mass of normal popular people.
And of course, it is manifestly risible for Trump voters to claim to hate bullying. Whatever else you want to say about the Trump phenomenon in 2016, it clearly involved a substantial amount of bullying, derision, and even rough-housing/violence at some of the rallies. (I’m not absolving the Clinton campaign, which of course also involved a different type of bullying and derision.) Trump supporters have also ruthlessly mocked and derided “DeSantoids”, using classic nerd-bashing behavior; see Scott Greer’s (admittedly amusing) unflattering impression of DeSantis’ nasal voice and spergy affect.
Trump voters have no leg to stand on if they wish to wear the mask of the oppressed and marginalized. That sort of maudlin victimhood-signaling has never been what conservativism or right-wing values are about. If anything, Trump voters should be proud to be the jocks and cheerleaders rightly excluding the maladjusted weirdos; playing this “no, you’re not the underdog, I’m the underdog” game is just totally conceding the left’s frame.
If anything, Trump voters most closely resemble the oppositional culture cultivated by blacks. When they are a minority or are relatively disempowered, they cry victim and throw out accusations of cheating and unfair privilege. When they are a local majority or gain any sort of power, though, they ruthlessly bully whites and Asians; they also bully those within their own ranks who “act white” by refusing to wallow in victimhood and who aspire to earn a spot in the majority culture via self-betterment and the adoption of bourgeois values. Blacks as a cultural-political constituency would rather destroy the mainstream American establishment - supposedly for excluding and “othering” them - than try to prove worthy of being embraced by that establishment. And when they don’t get what they feel they’re owed, they riot.
I say this all as someone who voted for Trump in 2020 and who will vote for him again this November, assuming he’s the GOP nominee. I just hate liars and cope. The people in power in Washington DC and in the media and academia are certainly not Chads and Stacys. They were not jocks and cheerleaders. They see themselves as champions of the marginalized and disempowered, the same way that [the Trump who exists only the minds of his ardent supporters] does. Oppositional populism is a great way to drum up votes and guilt your way into power, but it’s also the sign of a catastrophically unwell society. Give me a candidate who is proud to represent normal, productive, intelligent people, and maybe then I’ll start getting excited. That’s what Ron DeSantis was supposed to be, and Trump supporters called him a fraud and a sellout for not going to bat hard enough for J6 rioters or agreeing that the 2020 election was stolen.
Our country is fucked.
Presidential Ballot Access: Ohio Edition
As of today, a state is currently set to only have one of the two major parties candidates for President on the ballot, but it's not the one you might expect.
Ohio law requires that presidential candidates be certified – that is, the state must be notified that presidential candidates have been officially nominated – 90 days before the general election in order to get on the ballot. That is the earliest deadline of any state.
But the Democratic National Convention that will formally nominate Biden won’t open until nearly two weeks after Ohio’s Aug. 7 deadline. The Republican National Convention will wrap up nearly three weeks before the deadline, so Donald Trump won’t have a problem getting on the ballot...
Ohio laws generally take effect 90 days after passage. So a change to the deadline had to pass by May 9, but the Legislature wound up doing nothing.
To be fair, this law has existed since 2010, albeit with a couple past temporary exceptions (probably a compromise number downstream of a 2006 court case over a third-party candidate 120-day deadline; see references to Blackwell and progeny here). and the Ohio legislature (majority Republican) has done nothing less out of explicit desire to screw over democracy and more because the Ohio GOP's House and Senate are fighting each other, and a GOP interest in getting some sort of Red Tribe value out of it (the closest bill, HB114, also bans some foreign contributions to ballot initiatives, for about the reasons you'd expect). DeWine, the (Republican) governor, is pressing pretty hard to find some sort of solution, whether that ends up an emergency legislative fix, hoping the courts can and will step in, or a more dubious executive branch intervention. And it's not like there's any plausible situation where Ohio would be the turning point for the 2024 election.
((There's some theories that Ohio Dems are trying to bolster Sherrod Brown's chances, though I don't think that's very likely or even particularly coherent.))
To be less charitable, nice motive, still excluding a major political party from the ballot. It's not going to be doing any wonders for society, and as we get closer to the election, the available options, whether taken or merely proposed, will only make the mess clearer. The current planned resolution looks to be a 'virtual Democratic National Convention call', officially nominating Biden before the actual Chicago disaster convention. Hopefully, that's enough of an excuse for the Ohio legislative special session to also clean things up, but more likely the virtual call gets counted as close enough for Ohio law (less optimistically, it leaves no one able to challenge it). But the whole thing has just been a parade of one group after another absolutely certain that someone else will fix the problem that they're rolling directly into, and 'it wasn't my fault' is an awful epitaph.
Fauci et All Foiling FOIA
One email refers to a “private gmail” supposedly used by Fauci. Morens also referred others to a “secret back channel” for communicating about certain issues. He also frequently directed others to message him on his personal Gmail account to avoid FOIA requests. Morens also noted he had “learned from our foia lady here how to make emails disappear after I am foia’d.” That individual, who he identified as Marg Moore, “also hates FOIAs.”
The emails also reveal Morens made a series of crude comments about women, female coworkers and his drinking habits which indicate he “is not qualified to hold a position of public trust,” the committee wrote. Morens testified to the subcommittee Wednesday that he didn't remember if he used a personal email to conduct government business, but conceded it was "wrong" if he did so.
None of this is particularly surprising, from a cynic's perspective -- government employees fucking with FOIA requirements is a day ending in Y. There's a steelman where certain scientists involved in climate change research were getting spammed with so many duplicative FOIA requests that it edged on harassment, though given neither Morens nor Fauci every worked in environmental stuff that that's leafspring-grade steel.
There's no serious chance of serious punishment, here: Morens was already investigated and found not guilty of anything that the NIH cared about, and if anyone has problems with him lying to Congress, well, there's some fun legal realism questions about whether the law is the statute or the enforcement, but the enforcement still comes from one place.
On the other hand, it does seem enough to have pissed off no small number of partisans aligned to that One Place, if, cynically, more in the sense that Morens et all got caught. HHS is at least moving against EcoHealth Alliance. If you were to ask what one would consider a good sign, well, there's certainly end results that could point to people taking this seriously.
Title VII Religious Freedom in California
Another day, another VanDyke dissent:
In its stubborn insistence on ruling against Chief Hittle, the panel has twisted the record into knots and badly misstated Title VII law. Its decision (1) abdicates its responsibility to read the record in the light most favorable to Hittle at the summary judgment stage; (2) allows employers to escape liability for repeating discriminatory remarks simply by hiding behind those who say them first; and (3) mangles Title VII’s “motivating factor” analysis.
Perhaps most glaringly, its original opinion also incorrectly heightened the showing a plaintiff is required to make to demonstrate disparate treatment. In the panel’s view, Hittle bore the burden of showing that the City’s discriminatory conduct was “motivated by religious hostility,” notwithstanding the Supreme Court’s admonition that such a plaintiff need only show he was “intentionally treat[ed] … worse because of” a protected characteristic, Bostock v. Clayton County.
Recognizing at least this last mistake, the panel’s amended opinion retires its former use of the word “hostility,” replacing it with the more accurate (but less specific) “discriminatory animus.” Not only do those changes not fully fix the original opinion’s legal errors, but they also put the panel, which apparently remains as determined as ever to rule against Hittle, in a pickle.
Notwithstanding its many other errors, the original opinion correctly acknowledged that the “gravamen” of the “notice terminating Hittle was the religious nature of the leadership event.” But if attendance at a religious event was the “gravamen” of the firing and Hittle need only show that he was “intentionally treat[ed] … worse because of” religion, Bostock, 590 U.S. at 658, it would seem the panel would have no choice but to reverse its previous decision in favor of the City.
But it won’t.
We've had discussions here about a more expansive framework for discrimination, but this seems the punchline. Title VII has prohibited religious discrimination in hiring and firing of employees for sixty years, and while the exact borders of the doctrine have ebbed and flowed from one jurisdiction to the next, or as courts have pushed at the very edges, trying to bring them to these style of cases has been an expensive shitshow, where even the lucky winners spend decades for minimal defenses. Even defining this class of cases is a mess: I want to say discrimination against the 'majority' (but anti-woman discrimination is clearly covered!), or 'non-subaltern' (but trite agnosticism is protected, he says as a trite agnostic), rather than just Groups Progressives Want To Discriminate Against, and that's kinda the problem.
However, that punchline's also a bit of a repeat: not just that VanDyke is writing his dissent at an en banc appeal that had no chance of victory, or that the original opinion had to be edited to not be hilariously wrong, but that Kennedy went to and was decided by SCOTUS almost a year before the original appeal decision came from the 9th Circuit. The facts in Hittle are different, sure -- Stockton alleges, not very credibly, that they 'really' fired Hittle for endorsing a consulting business and for not disclosing closeness to a union president -- but the courts were (supposedly) not yet deciding facts, but merely the motion for summary judgement.
Instead of motions for summary judgement focusing on questions of law, various balancing tests and excuses can fall into play where judges don't like the plaintiff's perspective. Instead of protecting Hittle against employers that were outraged by his place in a complaint-named 'Christian coalition', the law in California now holds that there is a "legitimate concern that the City could violate constitutional prohibitions and face liability if it is seen to engage in favoritism with certain employees because they happen to be members of a particular religion." Sure, that anti-endorsement test had been explicitly rejected contemporaneously to and previously by SCOTUS, but SCOTUS "can't catch 'em all", and increasingly doesn't seem interested in trying.
That failure mode isn't and wasn't inevitable: despite my expectations, Fulton hasn't come back to the courts (yet). But it's a problem that haunts any attempt at legislative or executive branch 'fixes'.
((At a more concrete level, Hittle was fired in October 2011, at a time where he was nearing age 50. The unusual length of the court case here reflects Stockton's bankruptcy rather than overt malfeasance specific to him, but it still means he's in his mid-60s today. Even should, SCOTUS hear this case, overturn it, remand with direct instructions, no further interlocutory appeals or weirdness occur, and the trial occur speedily, he might see a court room on the facts before he self-moots by old age, but probably not before he sees his 70th birthday.))
An Appeal to Heaven
Compare February and to May. Diff, context. Also see here, and here.
The Cloud is Someone Else's (Broken) Computer
Unisuper is an Australian superannuation fund, which is close enough to a psuedo-mandatory version of American retirement funds. AshLael might know the more specific differences. It has 600k members, about one in fifty Australians, with over 125 billion AUD (~88 billion USD) funds under management. It also fell off the internet on May 5th, only restoring full functionality May 20th, allegedly as a result of a 'one-in-a-million' bug in Google Cloud services dropping both the main Unisuper database and all Google Cloud backups.
UniSuper had duplication in two geographies as a protection against outages and loss. However, when the deletion of UniSuper’s Private Cloud subscription occurred, it caused deletion across both of these geographies.
Restoring UniSuper’s Private Cloud instance has called for an incredible amount of focus, effort, and partnership between our teams to enable an extensive recovery of all the core systems. The dedication and collaboration between UniSuper and Google Cloud has led to an extensive recovery of our Private Cloud which includes hundreds of virtual machines, databases and applications.
UniSuper had backups in place with an additional service provider. These backups have minimised data loss, and significantly improved the ability of UniSuper and Google Cloud to complete the restoration.
This is a little weird, and not just for having an actual benefit from multicloud. Google Cloud Platform doesn't have the best reputation, but 'keeping multiple copies of long-standing data' is one of those things cloud providers are supposed to excel at, and having first disclosure come through the client rather than the cloud provider is a decision that Google Cloud didn't have to make. There are even arguments, a la Patio11-style, that part of what a client Unisuper's size is buying from a cloud provider is to have a name to fall on a sword. This has lead to no small number of people reading tea leaves to conclude that the fault 'really' reflected an error by Unisuper (or a separate smaller contractor) making a configuration mistake. Unisuper was migrating from VMWare, which has its own mess, and is exactly the sort of situation you would see greater vulnerability to client developer error. That still wouldn't be great for Google, since most cloud providers at that scale claim a lot of safety checks and emergency backups, but I could understand if they just failed to idiot-proof every service.
Nope :
During the initial deployment of a Google Cloud VMware Engine (GCVE) Private Cloud for the customer using an internal tool, there was an inadvertent misconfiguration of the GCVE service by Google operators due to leaving a parameter blank. This had the unintended and then unknown consequence of defaulting the customer’s GCVE Private Cloud to a fixed term, with automatic deletion at the end of that period. The incident trigger and the downstream system behavior have both been corrected to ensure that this cannot happen again.
We probably won't get a full breakdown until the Aussie regulatory agency finishes an investigation (if then), so there may always be more to the story, and a lot of fun questions about what, if any, data was out-of-date or lost from the backup. But this is pretty damning for Google, as things stand.
On one hand, this probably is a one-in-a-million bug, and readily closed. On the other hand, as anyone with network engineering or statistics or X-Com background can tell you, one-in-a-million means a lot less than the naive expectation, and Google Cloud Platform has an estimated just under a half-million business customers, and this is an embarrassing bug.
Does that mean that they're got it out of their system for another million customers? Or that this is just the first time it happened and was big enough a deal to make the news?
((Okay, the real answer is I'm being pedantic and reading too much out of a turn of phrase.))
The bigger problem is that Cloud has long been sold as The Professionals Doing It Right. That was always a little more true at the margins than the center. As bad as rando small businesses trying to maintain a Gitlab instance can get (and it can get bad: even by web software standards, it's a masochist's tool), no small number of seemingly-legit smaller cloud providers have gone belly up, wildly revised their offerings, or just plain disappeared. It's quite possible that Unisuper moved to Google Cloud in part because the Broadcom buyout of VMWare (only finalized in December 2023, but after 18 months of regulatory review) raised concerns that they'd start lopping down product offerings.
(But to move to Google?)
It's increasingly tenuous, here, though. Unisuper are not fresh college grads confused by the difference between a RAID and a backup, but a massive company that maintains many sites as a matter of course. Google is one of the Big Three when it comes to cloud provisioning. One can imagine counterfactuals where a self-run or classically-hosted Unisuper herped the derp, but the factual here makes them look like the competent ones. And that's not alone.
Which would be one thing if Unisuper were the only people pressed into cloud services.
How's everyone feel about OneDrive integration in Windows, or Google and Apple cloud in their phones?
oats_son
5mo ago
So I got into an Elon argument. I said that he's autistic and made an unusual hand gesture to convey the idea he said at the time, which is "my heart goes out to you". I failed to mention Occam's Razor, which is the most obvious to me, and in this case it goes "but wtf would he even gain out of doing a dogwhistle here?" Hitler worshippers aren't worth many votes, even if they did like lip service... I guess you could argue he did it for Moloch and engagement, which seems to be why Trump says all the outrageous things he says.
But I digress. In the incredulous argumentation by the other parties that Elon was obviously a neo-Nazi and this wasn't accidental at all, I was linked five articles that they themselves got from someone else, so for all I know, these are making the rounds in a ton of spaces. I was not satisfied with any of them, but we'll go through 'em, mmkay.
I. Business Insider: Musk Faces Consequences for Calling Antisemitic Tweet 'Actual Truth'.
This was paywalled for me at the time of the actual argument, so I said as such and moved on. Reading it now, I suppose I'm glad it was, since it's more difficult to defend to a normie lib than the others were. If it's paywalled for you, it's about Musk's affirmative reply to this tweet. It's been written about before here, but I think progressives like to apply identity politics to many different groups, but do not appreciate when it's applied to white people.
However, I don't think I agree with its framing, taking such a wide swathe of Jewish groups and then saying that those same Jewish groups are appealing for help from, I dunno, the Muslims? I certainly wouldn't have agreed with it on social media, because it's a Bad Look. I'm not here to say Elon Musk is innocent or anything, in fact, I think he's dumb as hell, at least politically. I just don't think he's a Nazi, neo or otherwise. Certainly some neo-Nazis I know would be happy if he was.
Anyway, I don't think applying group status to white people is a Nazi thing to do, nor is it a Nazi thing to admit that Muslim communities have problems with anti-semitism, nor is it a Nazi thing to say that Jewish groups tend to slam white people because it's safe to do so and because half the time, they don't even mean white people.
II. Futurism: Elon Musk Deletes Nazi Apologist Tweet After Near-Universal Backlash.
The flailing executive deleted a quote-tweet in which he called a Tucker Carlson podcast featuring a Nazi apologist "very interesting" and "worth watching" after near-universal backlash.
In the original Carlson post, which is still live, the ex-Fox pundit interviews purported historian Darryl Cooper, an apparent Holocaust denier who says, among other things, that then-UK Prime Minister Winston Churchill was the "chief villain" of World War II.
Okay, he shared a Tucker Carlson interview. Who gives a shit?
Okay, but he interviewed a Nazi apologist. Okay. I've done that too. I was sent a podcast called Stone Choir telling me about how the Holocaust was faked, and I linked it elsewhere and shared clips of it to mock it. Damn, that's crazy! I've shared Holocaust denial podcasts. Who gives a shit?
Okay, but he called it very interesting and worth watching. Well, in Liberalism World, it is not a requirement to dismiss everything someone says just because they're part of a group that is disliked. Certainly, it is not only neo-Nazis who like dunking on Churchill. Slaughterhouse Five bordered on outright saying Winston Churchill was wrong to bomb Dresden, and it even used the inflated statistic of current-but-not-at-the-time Holocaust denier David Irving. I've also seen numerous articles on Lew Rockwell slamming the guy, though frankly, they're anti-establishment to the point of insanity, and certainly not above conspiracies themselves. But Tucker Carlson wouldn't have done the interview if it wasn't going to be interesting to anyone who wasn't a neo-Nazi.
Furthermore, Elon Musk probably didn't even know he was a neo-Nazi when he shared that podcast and said he liked it. How do I know? Because he deleted it. Why would he delete it if he already knew all the facts when he made the post? Occam's Razor, again! Please! But I don't really know for sure, I guess. Whatever, man.
III. International Business Times: Europeans Rebuke Elon Musk's Proposal For 'MEGA: Make Europe Great Again': 'Stay Away From Europe'.
I actually didn't even see a need to defend this one. He said Make Europe Great Again? Okay? Who gives a shit?
At the time, it felt like the baffling extension of the sentiment on /r/europe lately of "Elon, stop interfering in our elections, we're going to ban X if you don't." To which I call them vile hypocrites! Certainly no one cared if Biden or Harris or whatever establishment liberal institution endorsed whatever establishment liberal institution in Europe. Why is Elon any different? Leave Elon Alone!
Now, I see it was supposed to be a point that he's imperialistic or something, and the article compares saying MEGA to some rhetoric Viktor Orban used once. This is kind of a Trump situation for me, in that I don't really take him seriously. Who the hell would want Europe? Besides, MAGA has been memed to death at this point. And Elon likes memes.
IV. truthout: Elon Musk to Host X Event Promoting Neo-Nazi AfD Party Ahead of German Elections.
I feel like it's worth mentioning at this point that some of these links are pretty questionable and are only being talked about because they're with the right people. This sounds like a left wing tabloid? Have any of you heard of this site? Who the hell uses it? Anyway...
Mega-billionaire Elon Musk, owner of the social media site X, plans to hold an online audio discussion on the platform with the leader of a far right German party, amplifying the party’s fascist and neo-Nazi ideology.
The discussion between him and Alice Weidel, a leader for Alternative for Germany (AfD) and the party’s candidate for chancellor in the February 23 snap elections, will take place”very soon,” a spokesperson for Weidel said, indicating that it will “definitely” happen before the elections. The German-based newswire agency dpa reported that the talk between Weidel and Musk would occur on January 10.
Musk signaled his support for AfD in mid-December, writing in a post on X that “only the AfD can save Germany.” He also penned an op-ed in a German newspaper last week, describing the party as the “last spark of hope” for the country.
That sounds pretty bad! At least, it does to me. But I know from reading here and elsewhere that the AfD only made the headway that it did because it is basically the only party that doesn't support immigration and that people trust to stop the immigration, and possibly even "Auslander raus!" them. And to me, since that's the only thing I really know that the AfD supports, Elon Musk may have endorsed them based off of that alone. Or he may have wanted to signal boosted them since he saw other right wingers signal boosting them, and didn't look at their signal boost critically at all.
Whatever the case, I haven't actually heard him say what he likes about them, other than say that they're the last hope of Europe -- which they very well could be, if you take immigration as a serious issue (which people do, or the AfD wouldn't be where it is now). Frankly, I don't think Musk actually probably agrees with all their stances, because if they're actually far right, then they probably disagreed with his H1B stance pretty vehemently. You don't get a whole lot of white supremacists or xenophobes or Jew haters say that we need to import more engineers because Americans aren't good enough.
V. NBC News: Before Trump, neo-Nazis pushed false claims about Haitians as part of hate campaign.
You actually have this article to thank for this long wall of text. There was just too much to rage about and talk about with just this article to leave this post unwritten.
The day after the presidential debate at which former President Donald Trump spread a false story about Haitian immigrants eating pets in Springfield, Ohio, Christopher Pohlhaus, leader of the national neo-Nazi group Blood Tribe, took to his Telegram channel to take credit.
Pohlhaus, a Marine-turned-tattoo artist known as “Hammer” to his hundreds of followers, wrote Blood Tribe had “pushed Springfield into the public consciousness.”
Members of his hate group agreed. “The president is talking about it now,” a member wrote on Gab, a Twitter-like service popular with extremists. “This is what real power looks like.”
Whoa! You mean to tell me that far right wingers were the originators behind the hateful Haitian rumor that Trump mentioned during the debate? Are Trump and other right wingers like Elon and Right Wing Twitter really sanewashing the hateful screeds of skinheads on Gab and Telegram that aren't even visible to normal people?
Trump’s line at the debate was the culmination of a weekslong rumor mill that appears to have at least been amplified by Blood Tribe, which has sought to demonize the local Haitian community online and in person. The debate drew more than 67 million viewers, according to the media analytics company Nielsen.
As with most rumors, the beginning of the baseless claims about Haitians eating pets in Springfield is hard to pinpoint, but Blood Tribe undoubtedly helped spread it.
Oh, they didn't. Actually these are just some crazy assholes online who probably just fed into a preexisting narrative. Good God, man, I thought we were onto something interesting.
This is actually fucking incredible coming from NBC News. Tying Trump's talking about this to this random far right group that talked about the same thing is one of the most tenuous connections I've seen in a news article. It's a very "Trump drank water, so did Nazis" news article. This may even have gotten modded on The Motte. "Ah," says NBC News Commenter Amadan, "it appears you're trying to tie the actions of a reprehensible group to some mostly unrelated group in order to make statements about the mostly unrelated group. Stop it! You're better than this! Drop the knife! Drop the knife!"
At the time, someone pulled this quote from the article, only copy pasting the bolded part:
In response to a request for comment sent to Pohlhaus, Blood Tribe said in an email that it stood by its claims and that it would continue its activism, “making sure” Haitian immigrants “are all repatriated.”
I didn't even know who that was referring to, but I could tell that it was a horrible quotation. Why are "making sure" and "are all repatriated" in quotes, but "Haitian immigrants" is not? Because "Haitian immigrants" not being in quotes tells me that that was substituted into the original, and I really don't trust these journalists to make determinations on what the original author was saying. Maybe they could have linked the original email? It gets my hackles up, because the original could have been talking about asylum seekers in general, which is very much not a neo-Nazi thing to say. But it turns out I didn't even need to make sense of it, because Elon Musk is probably like me and has never even heard of Blood Tribe.
To cap it all off, making racist, baseless remarks about foreigners is far from being exclusive to Nazis. Dude, take any country on the fuckin' planet. That's how widespread it is. It goes higher than the ADL ever knew. Nazis have gone global.
I really thought NBC News was onto something here, but they blew it. But it's okay, because I'm better than NBC News. Where they failed to make the point, I will try to make the point that I wanted them to make non-frivolously.
I liked the Inverse Florida article about Hamas loving tumblr people for making the very excellent point that a lot of center left rhetoric is just sanewashed from insane left wing people. I am somewhat afraid that the center right may be similar, and their rhetoric is just sanewashed from insane right wing people. But I don't have any evidence. So I guess I'm actually not that much better than NBC News. Then again, at least I'm asking the question instead of just suggesting it.
Do you think that that NBC News article was closer than I give it credit for? And do any of you think that Trump or Elon take cues from people farther right than them? If so, why?
ymeskhout
1yr ago
Ohio Republicans' Inexplicable & Baffling Abortion Blunder
I support expansive abortion access purely as a matter of practical considerations because of how legal prohibitions encourage horrific black market alternatives. I part ways with the pro-choice crowd when they respond to a difficult morality question with flippant dismissal. So at least from that standpoint, I sympathize with the earnest pro-life crowd because they're helplessly witnessing what is (by their definitions) a massive genocide made worse by the fact that it's legally-sanctioned.
So if you're in that unenviable position, what are your options? The major practical problem is that abortion restrictions have been and continue to be extremely politically unpopular. The Dobbs decision generated a lot of what basically amounted to legislative reshuffling at the state level. Some states had trigger laws banning abortions, that awakened from their long slumber only for courts, legislatures, or voter referendums to strike them back down to sleep.
Ohio's law banning abortions when a fetus heartbeat could be detected (typically occurs within 6-7 weeks of pregnancy) was struck down by a court last year, and so currently abortions there are legal up until "viability" (typically understood to be 22 weeks). On top of that, a referendum was set to be voted on this upcoming November election which would solidly enshrine abortion access within the Ohio state constitution (worth noting that this is the only referendum on the ballot). Given where public opinion is at on this issue, the amendment is virtually guaranteed to be approved by voters. What can you do to stop this train?
Ohio Republicans responded in a very bizarre and inexplicable manner (part of a pattern it seems). Apparently aware that the November referendum was going to be a shoe-in, they organized a whole special election in August as a preemptive maneuver to increase various thresholds for constitutional amendments, including raising the passing percentage from 50% to a 60% supermajority. That measure failed in the special election held yesterday, with 57% of voters against it.
Where to start? First, asking voters to vote against themselves was always going to be a challenge, and Elizabeth Nolan Brown notes the rhetoric supporters of Issue 1 had to resort to:
One talking point has been that it protects the Ohio Constitution from out-of-state interests. (For instance: "At its core, it's about keeping out-of-state special interest groups from buying their way into our constitution," Protect Women Ohio Press Secretary Amy Natoce told Fox News.) Another has been that it signals trust in elected officials to safeguard citizen interests, rather than letting a random majority of voters decide what's best. (The current simple-majority rule for amending the state constitution "sends the message that if you don't like what the legislature is doing, you can just put it on the ballot, and soon the constitution will be thousands of pages long and be completely meaningless," Carol Tobias, president of the National Right to Life Committee, told Politico in a prime example of this tack.)
Some of the TV ads the supporters ran were so incoherent. I don't know how representative this particular example is but the 30-second spot avoids saying anything at all about abortion and instead argues that voting yes on Issue 1 would somehow...protect kids from trans drag queens in schools? The fuck? I guess they knew that "vote yes on Issue 1 to keep abortion restricted" wasn't going to be a winning message so this tangent was the only option.
Even if somehow Issue 1 had anything to do with gender identity indoctrination in schools or whatever (if anyone can explain this please do!) it bears repeating that the only referendum on the ballot in November was about enshrining abortion access. Voters are dumb but they're not that dumb.
Just this last January Ohio Republicans passed HB 458 which eliminated almost all August special elections, but then they insisted on passing another law walking that back specifically to make sure Issue 1 got its very own election. The gambit apparently was to help its chances by leveraging low voter turnout in special elections. This too is baffling, because the timing gimmick very likely energized the "Democrats' highly educated neurotic base" as my boy Yglesias so eloquently put it. Also, the type of voter that is willing to show up to a special election is not going to be the type that is inclined to wrest control away!
None of these decisions made any sense. By investing into a preemptive referendum to raise the threshold, they loudly advertised they knew their issue was going to lose in November. By carving out an exception for an August election, they demonstrated they knew they couldn't win unless they act like a Turkish ice cream man with voters. By conspicuously avoiding talking about abortion, they're acknowledging their policy position's unpopularity.
I'm again acknowledging that the pro-life crowd faces an unenviable challenge in advocating for their position, and clearly their attempts at persuasion over the last several decades have not been panning out. But who actually thought the blatant gimmickry described above was actually going to work? All it did was showcase how weak they must be if the only tool in their arsenal was comically inept subterfuge.
Felagund
1yr ago
Thursday's cases:
The abortion DIG I already wrote up. I still need to get to Friday's cases.
Ohio v. EPA
5-4, men vs. women. Gorsuch writes, Barrett dissents.
Another procedural case. The question is whether to stay the enforcement of the Clean Air Act as some states sue over it.
Specifically, the EPA threw out a bunch of State Implementation Plans when it wanted to put in place a Federal Imlementation Plan for preventing ozone pollution (ozone is bad at low altitudes). The states want it not to be enforced until they sue.
The court approves. Gorsuch, joined by the other men, argues that the harms go both ways, so the question goes to who is more likely to actually win the case. He think the states. Specifically, the states are arguing that the agency hasn't explained why the plan would remain in place for the remainder without needing additional evaluation or justification if some states drop out. He rejects the EPA's arguments that they offered a sufficient response (to the argument that the number of states involved might have affected the threshold, so it should be reevaluated), he rejects their claim that they were required to have submitted it during public comment (Gorsuch argues that there was a comment that was close enough), and he rejects their argument that they need to refile, as their grounds for objection arose after the period of public comment. He also rejects the dissent's argument that the complaint was not important, as it doesn't depend on the number of states, because the government did not make the arguments the dissent makes, and there is some reason to think that the different rules for harmless errors seem to be for "procedural determinations," not "actions." And so the stay is granted.
Barrett argues (as background) that the 23 states' SIP rejections were legitimate, and that the disapprovals are only temporarily stayed, not yet invalidated. Barrett rejects the Court's main complaint, the lack of reasonable response, as something that could not have been brought up earlier, and so requires a petition for reconsideration, as it's a new problem. (That is, there was no way to object that, before the public comment period was over.) Second, she doesn't think the comments applied specifically enough. She further thinks that they need to show that the actions were "arbitrary and capricious," which she doesn't think was the case: she doesn't think the cost-effectiveness thresholds were dependent upon which states were involved, but that they were based on national data, so it shouldn't matter which states were involved. It justified the severability in the plan. And they might not be important comments, and the agency only needs to respond to relevant and significant comments. Finally, there's a harmless-error rule in the Clean Air Act. (She argues contra Gorsuch that it applies.) She argues that the court itself is following a theory not advanced by the applicants' briefs, only the oral argument. And so it would be odd to expect the EPA to have forfeited when it never had the proper opportunity to respond. And she would exercise discretion anyway to look at the harmless-error rule, even had this not been brought up.
I'm more sympathetic to Barrett here.
Harrington v. Purdue Pharma L.P.
5-4, but not quite the usual lineup: Gorsuch, joined by Thomas, Alito, Barrett and Jackson. Kavanaugh dissents, joined by Roberts, Sotomayor, and Kagan.
The case is about bankruptcy law.
Based on Gorsuch's presentation of the history:
Purdue Pharma, held by the Sackler family, made billions from sales of Oxycontin, and so was a major force behind the opioid epidemic. A decade later, they admitted it was wrong to brand it as less addictive, and underwent thousands of lawsuits. In response, the Sacklers significantly increased the revenue that they took in from the company.
Purdue filed for bankruptcy. The Sackler family proposed to return 4 billion over the course of a decade of their 11 billion profit, asking to extinguish outstanding claims that the Purdue bankruptcy estate would have against the family, and "the Sackler discharge": to stop lawsuits against them from opioid victims. The Sackler discharge consisted of a release voiding current and future opioid-related claims, and an injunction enforcing the release "forever staying, restraining and enjoining" claims against them. Purdue agreed to this (of course) and included them in the bankruptcy plan. In that plan, Purdue wanted to reorganize as a company for opioid education and abatement. And they would pay victims between 3500 to 48000 over up to ten years. Opioid victims opposed the plan, as did some states. The bankruptcy court confirmed the plan. The district court vacated the plan. The Sacklers suggested upping the amount in Purdue's estate by another billion and a half, if the states would withdraw their objection, which events then took place. The Second circuit judged it good. Now SCOTUS addresses it.
Gorsuch turns to the text of the statute, saying what a bankruptcy plan may do. All agree that the Sackler discharge is justified in the final category: "(6) include any other appropriate provision not inconsistent with the applicable provisions of this title." Gorsuch argues that it is standard to interpret catchalls like this not in the most broad manner, but in context, involving only similar things to the preceding list. But the previous five all involve the rights, responsibilities, and relationship to creditors of the debtor (here, the debtor is the Purdue estate), not other parties. And the word "appropriate" qualifies it, it is not unbounded. The dissent claims that not all are about the debtor's rights and resonsibilities, as (3) may settle "derivative claims" against nondebtors, but Gorsuch responds that that involves only claims belonging to the estate. All agree that the bankruptcy plan can address claims held by Purdue. But not claims by others against others. Gorsuch rejects the dissent's arguments that the catchall should be read as anything that would help bankruptcy law in its purpose, by arguing that bankruptcy law is not intended to be limitless; it cannot just do whatever to manage bankruptcy, without regard to other legal mechanisms.
He argues further that there are other statutory reasons to reject the Sackler discharge. First, in general, the bankruptcy code only gives discharges to the debtor. But that isn't the case here. Second, it constrains the debtor: they must come forward on all assets, it doesn't dismiss charges around fraud or willful or malicious injury, does not affect trial by jury regarding injury or wrongful death. But the Sackler discharge does none of these—they pay much less, and even those sorts of claims are extinguished. And finally, bankruptcies involving asbestos have a specific provision that they may bar action against third parties, and so that shouldn't be allowed in general. Gorsuch turns to history, stating that there are no comparable cases prior to the enactment of this act under previous bankruptcy codes, so it should not be read as embracing it, when there's nothing explicit to that effect.
Gorsuch states that "plan proponents and the dissent resort to a policy argument." (Recall that in Rahimi last week, Kavanaugh, the author of this dissent, rejects policy.) That argument is that the Sacklers assert that they will give nothing unless the release and injunction are granted, and so this is better for victims. The Trustee argues that the Sacklers can still face lawsuits of their own, and they may even negotiate consensual releases to avoid the lawsuits. On the other hand, the U.S. Trustee argues that ruling in favor of the Purdue here, and allowing nonconsensual third-party releases allow winning immunity for claims that are not dischargeable in bankruptcy, and without all assets, which would allow corporations to misuse the system to avoid liability. Gorsuch rejects policy concerns, on both sides, as irrelevant; he's not Congress.
Kavanaugh's dissent is enormous—54 pages. 13 on the appropriateness of non-debtor releases, 13 on appropriateness in the case of Purdue, and 21 disagreeing with Gorsuch's (20 page) opinion. This might be the longest opinion of the year; it's at least the longest one I've read yet from this year, I'm pretty sure.
Kavanaugh opens by explaining bankruptcies. They exist to resolve collective-action problems, in the form of everyone trying to get in a claim, then the slowest get nothing once the first ones recover everything. Instead, creditors get a proceeding upon all of them. The parties make a plan, and that plan may release claims against the debtor. At least creditors holding at least 1/2 in number, 2/3 in a mount, and in every class must confirm the plan for it to go into effect. They are consensual, even if some dissent. This case is a mass-tort case. Sometimes, "it is not only the debtor company, but rather another closely related person or entity such as officers and directors who may hold valuable assets and also be potentially liable for the company's wrongdoing." But it can be hard to pass legal hurdles, or reach their assets, so settlements are often reached releasing them, in exchange for substantial payments. It also solves a collective-action problem, in that it allows them to be divided equitably. And so they have often found them appropriate, and have been in use in asbestos bankruptcies and other such cases. They are needed for fair recovery and distribution of claims. He argues, then, that they are "appropriate," as that is the key term in (6), and argues that that, as in previous cases, is a broad term. The second circuit has ruled that the released party must be (1) closely related to the debtor, (2) they must have claims "factually and legally" intertwined with the ones against the debtor, (3) the "scope of the releases" must be "tailored to only the claims that must be released to protect the plan,"(4) the court should approve only if it is essential to the plan's success, (5) and the court must consider whether they've paid substantially to the estate, (6) determine if it provides fair payment, and (7) show that creditors must approve with at least 75%.
1-4 are to solve collective action problems, 5 makes it not a free ride, 6 to ensure fair compensation, 7 to ensure most approve.
He highlights that in general, there are high approval rates. He highlights also that these bankruptcies, by default, involve releasing claims non-consensually, the only difference here is against whom.
Then he turns to Purdue Pharma and the Sacklers. Apparently, there are $40 trillion worth in claims. Over 95 percent approved of the plan. Claims against both Purdue Pharma and the Sacklers were released. This was needed to preserve Purdue's assets. Purdue had agreed to pay for liability and legal expenses that officers and directors of Purdue would undergo in the future, including against the Sacklers. So Purdue could pay a substantial amount of money from the Sacklers. "So releasing claims against the Sacklers is not meaningfully different from releasing claims against Purdue itself." Otherwise some could race to the courthouse and take all the assets. (Gorsuch had addressed this in a footnote, saying that the US Trtustee said that the agreement does not apply if the Sacklers did not act in good faith, and that bankruptcy courts could get rid of the claims in other ways.) Second, the agreement increases the funds in the Purdue estate, so that victims receive more. (The US would take the entire 1.8 billion first, otherwise.) Kavanaugh says that the Bankruptcy court said that victims would be unlikely to recover from the Sacklers the money otherwise, as their legal theories have weaknesses, and their assets are overseas and otherwise protected. And if they did, one large claim could wipe out most of their assets, leaving everyone else with virtually nothing. Over 95 percent approved. Only a few are opposing it now. And so, it is appropriate.
Now Kavanaugh turns to address the court. He doesn't think the ejusdem generis (that is "of the same kind") canon for interpretation of catchalls was applied there properly. The releases do still involve the debtor: they involve releases on Purdue's misconduct. But he reads the court's argument as wrong in two ways: First, they are not limited to the debtor, as (3) nonconsensually extinguishes derivative claims against nondebtors. He argues that the court is wrong in distinguishing derivative from nonderivative claims. Kavanaugh argues that three other types of release also argue against the court's interpretation. Consensual non-debtor releases happen, are uncontroversial, and are not explicitly authorized in the bankruptcy code (and so would fall into 6.) But that would seem different—why should that be permitted in bankruptcy plans? Full-satisfaction releases provide full payment, and then release the claim. But this too is not explicitly listed. Exculpation clauses "shield the estate's fiduciaries and other professionals from liability for their work on the reorganization plan," (in order to prevent liability in creating the bankruptcy process), also fall into the catchall, and involve claims against nondebtors.
And secondly, it is proper to look at the purpose of the statute when doing an "ejusdem generis."
He rejects the Court's other arguments: the asbestos portion explicitly says it is not to be taken to affect any of the rest of the statute. He reject's the court citing a passage which says that a plan's discharge of the debtor "does not affect the liability of any other entity on … such debt," as that is instead to be read as leaving those who were co-debtors with a bankrupt company with the debt they had taken on, instead of wiping it. He rejects the claim that this is a discharge, as discharges are technical, and involve getting rid of all debts. Released are narrower, and involve payment. Kavanaugh rejects also the court's saying they would need to file for bankruptcy, to pointing to where they could release a nondebtor from liability to the debtor. He argues that discharges are meaningfully different from releases, so it's not a problem that it releases all classes of torts, not just some. And he says that the court seems concerned that they did not pay enough, but that is no reason to categorically shut down such releases. He also disagrees on history and practice, as they have been in use throughout the history of the bankruptcy code, and changes in the current code from previous codes are relevant.
He says, "today's decision makes little sense legally, practically, or economically. " Among other things, it hurts the victims. More litigation is costly, even if things get worked out. It is hard to achieve a deal without such releases. There are unlikely to be any settlements. This will prevent exactly what the bankruptcy system is designed to do.
I don't really know how I feel about this case. Kavanaugh convinced fairly effectively that his preference is better for the victims, but I'm still not sure which is better law.
SEC v. Jarkesy
6-3. Roberts writes, joined by the conservatives. Gorsuch concurs, joined by Thomas, Sotomayor dissents, joined by the liberals.
The court argues that under the 7th amendment, the SEC needs juries, as it is trying people for fraud, which is
Roberts briefly notes that the seventh amendment was a product of the British trying people without juries in other courts that did not require it, and it was in this context that it was enacted. Its text is that in "suits at common law…the right of trial by jury shall be preserved." Common law there is not restricted to common law at the time of the founding, but is talking about law as opposed to equity, admiralty, and maritime jurisprudence. (He cites precedent for this.) So any suit that's not equity or admiralty jurisdiction is common law. This requires that it be legal in nature. The relevant factor (citing Tull) is that its remedy be legal, not equitable. Because the SEC seeks monetary damages as punishment, not solely to restore, it is legal. The facts are clearly legal, as both the conditions for penalties and the level of them have to do with punishing the defendant, rather than restoring to victims. (The SEC may give money to victims, but that's optional.) And so this must involve the Seventh Amendment. This also makes sense because securities fraud is closely related to common law fraud, even if the boundaries are not precisely the same. This is also evidence that it is legal in nature.
Roberts turns to address the contention of the Government and the dissent that the "public rights" exception applies. In such cases, Congress can give it to an agency, without the Seventh amendment. Private rights cannot be removed from Article III courts. But the court has recognized "public rights." These could historically be done exclusively by the executive and legislative branches. The example cited is compulsion of a customs collector to deliver a sum of public funds that he had failed to deliver; his land was seized to do so. Other examples also exist, such as a fine on a steamship company on those who brought the sick who had bad diseases (He rejects the dissent reading this broadly; the case cited here explicitly restricts itself to power over foreign commerce). Or the imposition of tarriffs. Some others involve Indian tribes, administration of public lands, and granting public benefits, like patent rights. While these are not worked out in full, Roberts emphasizes that these are exceptions, not the rule, and so require close attention. (The dissent would read this as Congress can do whatever, essentially, that public rights are whenever Congress passes a statute. This is, Roberts says, argued neither from constitutional text, ratification history, careful analysis, nor case-specific analysis. Rather, some unrelated cases, and Atlas Roofing. This, Roberts says, blurs distinctions in a legally unsound way. He also rejects an appeal to precedent, considering how new the relevant law is.)
There is relevant precedent. Granfinanciera, 35 years ago, did much the same as what they do in this case: it ruled that Article III judges are needed for fraudulent conveyance claims. They ruled in the same way then, for the same reasons: they were "quintessentially suits in common law."
He rejects the argument that Congress can form new statutory obligation—they can't make up a new penalty for the same old common law thing and so strip away protections.
The dissent depends mainly on Atlas Roofing. Roberts doesn't quite get to the point of arguing that Atlas Roofing is overturned, but he critiques it. He points out that its author thought so, when Granfinanciera was judged, in a footnote. Atlas Roofing claimed that what Congress was doing was outside the Seventh amendment in the OSH act, when it required how walls be built. They ruled that it was a new cause of action. Atlas Roofing acknowledges that common law actions need a jury, and so is not relevant here. It cannot support a broader rule. Roberts, in a footnote notes that the dissent treats it as widely respected, and in response provides a lengthy list of critiques of Atlas Roofing, then finishes the footnote by saying "We express no opinion on these various criticism." He then notes that subsequent precedent after Atlas Roofing have clarified that new statutory regimes are included, if the claims are "akin to common law claims," and that the public rights exception does not apply every time Congress gives an agency any adjudicatory power. Roberts also rejects the argument that public rights applies whenever more government efficiency is useful, which would gut the Seventh amendment altogether.
Roberts declines to reach the other two issues (nondelegation, and separation of powers), as this suffices to resolve the case.
Gorsuch concurs, with Thomas, writing "to highlight that other constitutional provisions reinforce the correctness of the Court's course." He points to Article III and the Due Process clause of the Fifth Amendment.
Gorsuch goes a little further into the process of Jarkesy's case. The Dodd Frank act in 2010 had given the SEC the ability to direct people through its own adjudicatory system, rather than through courts, which the SEC did in this case. They sent him to an "administrative law judge," but those judges are not as independent as article III judges, but serve an agency, and there is no jury. They have a significantly higher win rate. He lost, in doing so, many other procedural protections, such as being able to cross-examine witnesses, or discovery being a thing. Its judgment can be appealed to the Commission, but they may decline to review, or may increase the penalty. Afterward, he can go to court, but there he would not have had a jury.
Gorsuch then turns to history. The British would preferentially seek rulings not in local courts, but in vice-admiralty tribunals, without juries or properly independent judges, and with weaker standards of evidence. Those courts were supposed to be confined to maritime matters originally, but more and more things were allowed by Parliament to be litigated there over time, at least, in the American colonies. They preferred to avoid colonial juries, who "were not to be trusted." The British preferred to turn to them, as they were more successful there. This matter was among the causes motivating the declaration of independence. Article III served to avoid this, in its vesting the Judicial power in courts giving life-tenure and protected salary, to restrict the influence of the executive branch. Nor could Congress move other things out from judicial power. In response to additional concerns, the bill of rights was passed. The seventh amendment preserved juries, the fifth amendment ensured proper procedure.
Each of these three require ruling in favor of Jarkesy. First, since it is in the common law, it requires Article III judges, in article III courts. Second, it is neither equity nor admiralty, but before common law courts, so the Seventh Amendment guarantees a jury. And third, the Due Process clause requires common law, which would mean usual proceedings, not "ad hoc adjudication procedures before the same agency responsible for prosecuting the law, subject only to hands-off judicial review."
Gorsuch turns to public rights. The government suggests any new statutory obligations, civil penalties, and administrative agency suffice. Gorsuch agrees that they are not that, but specific classes. He mentions theories as to their origin—practical consideration in tax collection, or that they fall outside the traditional "life, liberty and property." But whatever the cause, they need "an unbroken historical pedigree." The things outside judicial courts at the time of the founding are what public rights actually are. But this is plainly not that. Gorsuch addresses their reasoning: the Court's precedent In Crowell v. Benson, the court allowed the Longshoremen's and Harbor Workers' Compensation to proceed. It had it vested in a commission. Gorsuch treats it as a bit sketchy ("took a dash of fiction and a pinch of surmise"), and involved some dubious things in relation to Article III judges. But at least it was only in admiralty jurisdiction. But swiftly, there were further encroachments. The most was in Atlas Roofing, which some read to suggest essentially anything in a statute is public right. But this was mostly rejected in Granfinanciera, which read Atlas Roofing as leaving "public rights" undefined. Various tests have occurred since then, but in this case they return to the proper understanding.
The court may not deprive the people of their constitutional rights. They do not treat the other rights so lightly. (See the 1st, 2nd, 4th, and 6th amendements.) The 5th and 7th should likewise be taken seriously.
Gorsuch says that the dissent's account is "astonishing." The Constitution, apparently imposes no limits on the government's power to seek penalties outside the ordinary courts of law. Not even the balancing tests after Atlas Roofing. No account of how at all this addresses the Founders' concerns, or where this rule comes from Article III, the Seventh Amendment, or due process. They cherry-pick the precedent. Misread Oceanic Steam Nav. Co. v. Stranahan, which is actually just one of the narrow questions. It's odd, Gorsuch says, if the public rights is really that broad, that the former courts would bother to look at all the things they did to justify their law, instead of following the simple rule of the dissent. Gorsuch notes (and I found this particularly pointed) that the dissent is not even consistent, as in other cases the same justices have often argued for the need for procedural safeguards, worried about governments abusing, and pressure from prosecutors, and been concerned with matters of procedure, and argued the importance of the jury-trial right. The dissent also gives no explanation why this does not extend to criminal matters. The dissent complains against turning to the founding, and says that it's rule would be easier. (Gorsuch cites himself saying in Rahimi that it would indeed be easier to implement a rule that the government always wins.) When the dissent complains that this is unworkable and unpredictable, he rejects their balancing test approach as no better. And the Court's approach to precedent is better, and, as they acknowledged in another case, consistent with stare decisis. He characterizes this as really about a "power grab," that the Constitution's promise of a jury trial would constrain governance too much.
It's well written.
Now, onto the dissent. After her intro, and introducing the facts, Sotomayor states that "longstanding precedent and established government practice uniformly support the constitutionality of administrative schemes like the SEC's." This, she cites, should have great weight.
Sotomayor says there are two relevant constitutional provisions: the 7th amendment, and the vesting clause of Article III. "The principal question" is about aricle III and the separation of powers. The amendment is about "suits at common law." As it is suits, it only involves judicial, and not administrative proceedings. And since it must be at common law, it must be legal in nature. When it is not in an Article III forum, the proper question for whether it is legal in nature is whether Congress properly assigned the matter to that forum consistent with Article III and the separation of powers. If Congress properly assigned the matter to an agency for adjudication, it therefore resolves the Seventh amendment challenge. So, then, the question is whether it can assign it to a non-Article III factfinder. These are permissible as public rights. Public rights, Sotomayor says, refer to "right of hte public," claims brought by or against the United States.
Sotomayor goes through precedent. Murray's Lessee, involving seizure of lands to make up for withheld funds, referring to "public rights." Then Oceanic Steam Nav. Co. v. Stranahan, upholding a customs offical's imposition of penalties. It rejected that "in cases of penalty or punishment enforcement must depend upon the exertion of judical power, either by civil or criminal process." There was already at the time delegation by Congress to executive officers to enforce penalties, without judicial power. Congress being able to assign that power has been repeatedly affirmed by SCOTUS. This was unanimous in Atlas Roofing, the last case involving the constitutionality of an "in-house adjudication of statutory claims." Two employers had argued that OSHA was unconstitutional, because seeking civil penalties for violation of a statute is a suit for a money judgment, which is in common law. SCOTUS upheld OSHA, due to public rights arguments. Sotomayor says that the majority "wishes away Atlas Roofing by burying it at the end of its opinion and minimizing the unbroken line of cases on which Atlas Roofing relied, and this undermines stare decisis and rule of law. Both this and Atlas Roofing involve "new causes of action, and remedies therefor, unknown to the common law." So it's fine to assign them elsewhere. "In a world where precedent means something this should end the case."
Sotomayor says that this has not been addressed since Atlas Roofing because it is so settled, and undisputable. Sotomayor does not think the majority suitably defines a public right, and does not explain why it exists. Atlas Roofing rejects the theory that public rights is limited to particular exercises of congressional power. The employers made the argument that they referred to several narrow roles like taxation; SCOTUS rejected that. And she does not think the majority can justify Atlas Roofing's decision. Sotomayor points out further that the majority skips several cases where they uphold adjudication in a non-Article III forum, in cases not able to be characterized as public right under the majority's definition. She asserts that it is actually the majority and concurrence that are picking and choosing, not her. She thinks their definition of public right is a "we know it when we see it."
Tull and Granfinanciera she thinks not relevant: the first involved a suit in federal court, and the second a dispute between private parties, and so do not involve the government in its sovereign capacity. Sotomayor argues that the Court has long endorsed imposing money penalties without needing judicial power. Tull was in federal court, so it isn't relevant to show that "statutory claims for civil penalties" is a "type of remedy at common law." Tull also agrees that it does not involve administrative proceedings. Granfinanciera only involves disputes in which the Federal Government is not a party in its sovereign capacity, and allows for claims analogous to common-law claims to be judged in non-Article III fora. (In a footnote, Sotomayor says that Granfinanciera reaffirms Atlas Roofing several times; disagreements are constrained.) Sotomayor says that Granfinanciera says how to identify public rights: from Congress, inhering in the Federal Government in its sovereign capacity, or when Congress, acting according to a valid purpose, created a private right integrated into a public regulatory scheme "as to be a matter appropriate for agency resolution with limited involvement by the Article III judiciary." Sotomayor sees the majority as dismissing the distinction between the two. The majority is wrong to have Granfinanciera decide the case, when it only specifies that its analysis applies when not involving the Federal Government. And so the majority fails to distinguish Atlas Roofing. "A faithful and straightforward application of this Court's longstanding precedent should have resolved this case." Following precedent keeps courts apolitical. Departure should have considered special justification. The majority's striking down the law is "a seismic shift." It "Pulls a rug out from under Congress" without acknowledging what it's upending. There are over 200 relevant statutes, and more than two dozen agencies that can impose civil penalties. It is a "massive sea change." Sotomayor does not like that the Court tells Congress how to structure agencies, or provide for the enforcement of rights. the SEC's scheme has benefits. This decision is a "power grab," an arrogation of Congress's policymaking role, and violates the separation of powers.
Thoughts: I think Sotomayor was more convincing as to what the precedent was saying, though not to the point that the majority didn't have a few points here or there. On the other hand, the majority was more convincing as to what the Constitution was saying, and unequivocally so. I think Gorsuch's account upheld the 5th circuit, though he didn't say as much, on all three possible grounds, which makes it considerably more radical. It's a good opinion, though. Also, Gorsuch thought Granfinanciera was 25 years old; it's 35. This is a big deal, though maybe not quite as big a deal as Sotomayor portrays, because Roberts restricts himself to the first ground. I think I was underestimating importance, despite already thinking it relatively important, prior to reading it.
Anyway, I still need to get to Friday's cases.
Here
1yr ago
A (potentially former?) staffer for allegedly Sen. Ben Cardin (D-Maryland) is making news for filming gay sex in the Senate hearing room. He also, allegedly, yelled "Free Palestine" at Rep. Max Miller (R-Ohio).
I include the last sentence only to clarify the full context for a statement the staffer posted on his LinkedIn about the matter:
This has been a difficult time for me, as I have been attacked for who I love to pursue a political agenda. While some of my actions in the past have shown poor judgement, I love my job and would never disrespect my workplace. Any attempts to characterize my actions otherwise are fabricated and I will be exploring what legal options are available to me in these matters.
As for the accusations regarding Congressman Max Miller, I have never seen the congressman and had no opportunity or cause to yell or confront him.
I'm struggling with his statement because it seems like the "filmed sex tape at work in the Senate hearing room on Amy Koobuchar's desk" is more of the issue here than the staffer's sexuality itself, but the language used insinuates that he is using his sexuality as a defense for an act that straight people also probably could not have "gotten away" with.
The utter lack of understanding of consequences is also throwing me a little bit. Culture war discussions about sexuality dip into accusations of degeneracy and pleasure-seeking not associated with, necessarily, love that this video emulates. This video will of course be used to further those accusations onto "all gays" instead of the particularly privileged ones who work in the Senate.
DisplacedTexan
11mo ago
Is it possible for Trump to ditch Vance? He doesn't seem to bring much to the ticket, other than taking the spotlight away from Trump. Trump already won Ohio with a wider margin than Vance did in his senate bid. Can I get a steel man for why he was picked? It doesn't change my vote, but it comes off as a bad play to me.
New Mexico Gov. Michelle Lujan Grisham on Friday issued an emergency order suspending the right to carry firearms in public across Albuquerque and the surrounding county for at least 30 days in response to a spate of gun violence.
The firearms suspension, classified as an emergency public health order, applies to open and concealed carry in most public places, from city sidewalks to urban recreational parks. The restriction is tied to a threshold for violent crime rates currently only met by the metropolitan Albuquerque. Police and licensed security guards are exempt from the temporary ban.
Violators could face civil penalties and a fine of up to $5,000, gubernatorial spokeswoman Caroline Sweeney said.
The summary, if anything, understates the brazenness. There's a delightful video of the release press conference that starts out with Grisham highlighting the emergency order as a state-wide message to "start arresting people", and "just arrest everyone", and goes downhill from there to outright state intent to violate her oath of office! For an order she does not expect criminals to obey. The order declares the city off-limits for public carry, nearly exactly mirroring a specific hypothetical from Bruen.
I went to bed on this last night after trying to find a way to discuss it at a deeper level than 'boo, outgroup', and I'm still hard-pressed this morning. It's not like this is some unique and novel approach: I've written before on the prolonged efforts to provide massive resistance to Breun, or to otherwise violate the law, exploiting the nuances of standing and court timelines. Federal administrations have played footsie with overtly unconstitutional or illegal actions at length as delaying tactics over any coherent principle for matters as serious as the rental economy and as trivial as cancelling Easter. There were even a few efforts from the Red Tribe in early COVID days.
There's some tactical and logistic discussions that can be had, here. Most obvious, there's a ton of fun questions involved when the state can throw around multi-thousand dollar fines against people with no more warning or notice than a press conference late Friday night, should it ever come to that, though it's not clear that the specific stated punishment here matters. There's no evidence that the shooters in any recent murders motivating this order were carrying lawfully. There will almost certainly be open carry protests by mid-week, a completely foreseeable result that someone who actually worried about bunches of lawful gun carry causing violence would at least have planned around; the people going should plan around what happens if and when they're arrested and cited, but it's not clear that will actually happen.
The Bernalillo County police have already stated that they have not been charged with enforcing this: a sufficiently cynical reader should expect that the state police may not consistently 'enforce' the order either rather than tots-unrelatedly harassing the hell out of anyone who disobeys it.
Grisham signed a law abolished qualified immunity in some cases, but the precise text of that law and the New Mexico constitution make this unlikely to apply in the specific nexus of carry. The 11th Amendment makes federal 1983 lawsuits particularly complex, and unlikely to be renumerative or punishing.
They're also pretty boring. So I'm going to make a few predictions. Maybe I'll be wrong! Hopefully!
Grisham will not be impeached for a very simple reason. She will not be indicted, and I think it's more likely than not she never pays in her personal capacity. There will be no grand jury leaking embarrassing details, or FBI investigations doing the same, whether honestly or fraudulently established. New Mexico allows citizen grand juries, and it won’t matter Grisham will not be frog-marched before a tipped-off news media for a predawn raid, nor will we have arrest mugshots on national or local news. There won't be a long series of supposedly-unbiased news programs calling her a fascist, no baldly coordinated smear campaign to distract from someone else's failures, nor will some random employee become a minor celebrity by breaking the law to embarrass her and then claiming prosecution persecution. There will not be a New York Times article or The View segue fearful about how this undermines reasonable public health policy, nor will Lawrence Tribe be writing a characteristically incoherent argument about how this disqualifies her from any future elected office.
We will not have an injunction today, or a temporary restraining order the same day as a complaint was filed, to mirror the DeWine overreach linked above. The courts will not make a final determination before the order expires, even if the order extends beyond the thirty-day window. If the courts issue a TRO or preliminary injunction before the policy expires, people will still be harassed for carry, and no one will find themselves in jail for contempt of the court's order, even and especially if they Tried To Make A Message out of their disobedience. There will be a perfunctory mootness analysis when asking whether the state will do the same thing again, and in the unlikely even that threshold and standing can be achieved, the courts will instead notice that no colorable relief can be granted.
We will instead have taught a city's portion of gun owners that they can and should violate the supposed law, at length; that the government will quite cheerfully do the same and get away with it; and that the courts will shrug their shoulders and ponder what can you do thirty days later. And that is what happens if they are lucky.
jeroboam
1yr ago
Thursday's debate was the gift that keeps on giving for political horse race junkies like me. 2024's campaign was shaping up to be the ultimate snooze-fest. Neither party fielded competitive primaries. Neither candidate provided any sort of vision for the future. Two geriatric candidates were fighting a rematch over a tiny sliver of undecided voters. Despite the heated rhetoric, it was boring.
Everything is different now, and this is shaping up to be one of the most dramatic campaign seasons in history.
Biden's chances to win the Democratic nomination keep plummeting. On PredictIt, he is down to 50%! Kamala Harris's stock is surging - now up to 33%.
But while many within the Democratic media complex have called for Biden to step down (he even lost Brian Stelter!) elected officials have been much more circumspect. Nearly all prominent Democrats continue to support Biden in public. The knives are being sharpened, favors are being called in, backroom deals are being made. But the party unity hasn't broken. Somebody (Obama maybe) will have to strike the first blow. Until then, it's far too risky to stick one's neck out.
Biden's political instincts are stronger than many give him credit for. I've mentioned before how he's used the SPR to keep gas prices down, knowing that simple things like that matter a lot. Now he has a new mantra. Trust no one. Increasingly relying on his wife Jill, he is now apparently bringing in Hunter as an advisor as well.
Biden only needs to last a few more weeks. To appear on the Ohio ballot, Democrats must nominate someone before August 7th. He just needs to run out the clock. Big public speeches or appearances are a no no, as every senior moment will now be dissected in minute detail. Once he's the nominee, the media will come back onside to save democracy.
In any case, I can't get enough of the drama. Make election season fun again.
theory
10mo ago
Referring to abortion as “decisions of heart and home” is an interesting tactic.
Correct if I am incorrect, but don't democrats deny any right to the father of child and the family of the mother to determine if it should live or die? Because if neither her husband nor her family should have any say, the "home" part is deceitful. Only the "heart" (of the mother) decides.
The callback to her earlier line with “the only client he has ever had - himself” is great speechwriting.
Is this referring to Trump? He owned hotels, casinos, of which visitors could be called clients.
Someone has to actually lose.
A bit off-topic, but I read today about the political system if Bosnia and Herzegovina. The country has three main ethniticies: Bosniaks, Croats, and Serbs, all are subethnicities of Slavs, each has an associated religion, and all speak basically the same language. The country is divided into Federation of Bosnia and Herzegovina where the Croats and Bosniaks live, and the Srpska Republic inhabited by Serbs. Since the divisions run deep and none of ethnic groups trusts any other to not ethincally cleanse them, the bodies where power is allocated by election are subordinate to a neutral third party: Office of the High Representative (OHR) or unoffically Viceroy of Bosnia and Herzegovina.
Such a solution for a territory deemed to be too "primitive" for self-rule wasn't invented in Dayton, Ohio, but follows in the tradition of "Mandates" dating back to the League of Nations.
Perhaps a similar solution could be adopted in Palestinian Territories: P5+regional islamic powers+EU+Israel each send representative to Steering Board, which elects a viceroy. He would be given a range of powers and would tasked to make sure violent extremists do not gain power, and to slowly accustom Palestinians to a free and democratic society.
How does differ from a just a military occupation? Under the OHR system the natives make the vast majority of political decisions and OHR only intervenes if he senses danger to the peace treaty (in BiH's Dayton Agreement), while under military occupation (as practised by Americans, not as defined in international law) not even this fig leaf is required: any organization can be freely dissolved, destroyed, or altered, any person killed, imprisoned, or impoverished with no justification needed.
While the Bosnian and Second World wars both saw brutality, Germans in the war just prior to the one which earned them the occupation (WWI) behaved in a honourable and admirable manner, while South Slavs in the war just prior to the one which earned them the occupation (WWII) commited many atrocities, even against each other. So by this criterion by which one could determine how civilized populations are, Palestinians of the pre 10-7 era are closer to the South Slavs of WWII, than Germans of WWI, in their want to seeing people die.
So the role the foreigners play should reflect this similarity: because the Palestinians are seemingly crueler in general, the regime should be hands-off.
Gillitrut
Reading from the golden book under bright red stars
1yr ago
Election night thread?
Reading accounts like this make me glad to live in a state that (1) mails everyone a ballot every election and (2) also mails everyone a voters guide a week or more in advance of any election. I get text of initiatives, statements for and against, candidate statements, all kinds of stuff delivered to my door well in advance of having to make a decision.
Election logistics aside, the actual elections were pretty boring. Bunch of state level judges (electing judges is dumb as hell) running unopposed. About half the local races also involved candidates running unopposed. The other half were against incumbents who'd been in the position a decade and would probably win in a landslide. No initiatives or ballot measures or anything interesting.
Looking outside my own state, Bolts has a massive round up of stuff to watch tonight. Big ones so far:
-
Andy Beshar wins re-election as governor of Kentucky.
-
Ohio passes Issue 1 and Issue 2. Enshrining abortion rights in the state constitution and legalizing marijuana respectively.
-
Dems projected to control Virginia Senate, denying Youngkin a trifecta.
-
Loudoun County School Board looks likely to be won by Democratic Party endorsed candidates.
100ProofTollBooth
Dumber than a man, but faster than a dog.
1yr ago
This is incorrect.
Trump picked Peter Thiel as his VP.
J.D. Vance is the in-game skin downloadable content.
This is partly sarcasm, but I don't know how much.
The trouble with Vance is that we don't know who he is. Hillbilly Elegy is a good character origin story. But what follows? After serving with distinction as a Marine Corps ... Public Affairs ... yeah, nevermind ... he went Yale Law School and time at Thiel backed venture capital firm where he invested in ... an agribusiness?. Vance lived mostly in San Francisco before running for Senate in Ohio. He's a Catholic Convert married to a non-practicing-anything. His children are Ewan (not Evan), Mirable, and Vivek.
In 2016 he's a Never Trumper. When he runs for Senate, DJT helps get him over the finish line (along with Mitch McConnell but, hey, the real one's always operate from the shadows). In the Senate, he's staunchly pro-Israel, questions support for Ukraine, and says Lina Khan has done a good job.
As a VP pick, the move is to try to lock down Pennsylvania's electoral votes. Anointed as Trump's successor? Dyed in the wool MAGA? I think not. Another commenter mentioned Palin. I think that's a good comparison.
Trump has been moving to the middle on everything this cycle besides immigration and tariffs. The true believers are already losing their primaries (Bob Good in Virginia). OG MAGA (which was Tea Party 2.0) is on the way out. MAGA 2.0 is really riding a lot of the currents that popped off with COVID and BLM riots. Throw in a bunch of Grey Tribe Tech Bros and Vance makes a ton of sense.
The real question is when Trump finalized the decision - before or after the assassination attempt?
Here's a Patton Oswalt stand-up bit from 2011 (NSFW!) where he talks about being asked to audition for the role of "Gay best friend" in a romcom and him saying that he would only do it if he was allowed to play the character as really, really dumb, because he was tired of seeing all gay characters in media being portrayed as impossibly awesome and flawless.
The flip side of this is Weak Men are Superweapons. I've definitely started noticing recently that, at least in the media I consume, fundamentalist Christians (or deeply religious people in general) are never depicted as anything other than evil. Examples: the "Crackstone" character in Wednesday, the antagonists in Devil in Ohio (well, those were actually Satanists, but they sure looked like a standin for Puritans or Amish people). Can anybody think of an example of an important (main character or recurring supporting character) character in recent mainstream media that is depicted as a good person who does good things, but who is also explicitly a fundamentalist Christian?
Consolidated Markets in Healthcare
In the old place we talked about doing regular analysis of emerging legislation / happenings on the Hill, so this piece is in that spirit. Yesterday the Ways and Means Health Subcommittee had a hearing on “Why Health Care is Unaffordable: Anticompetitive and Consolidated Markets.” This isn’t a major hearing or anything, it’s just a topic I’m interested in so I thought I’d share it here.
If you’ve never watched Congressional hearings I actually recommend it. When I started I was surprised how generally intelligent and reasonable most Congressmen appear, even the ones who act like clowns on social media, how much they tend to ask the kind of questions you would want them to ask, how often Republicans and Democrats actually agree. The panelists are listed below, hyper linked with their written testimonies. Q and A is in the video.
Dr. Barak Richman, Professor, Duke Law School
The Honorable Glen Mulready, Commissioner, Oklahoma Insurance Department
Mr. Joe Moose, Owner, Moose Pharmacy
Mr. Frederick Isasi, Executive Director, Families USA
Dr. Benjamin N. Rome, M.D., M.P.H., Instructor in Medicine, Harvard Medical School
It probably needs no introduction how borked the US healthcare system is, but a few stats from the hearing: according to the Kaiser Foundation 30% of Americans say they didn’t pick up pharmaceuticals because of cost, almost half of all Americans must forego broader medical care due to cost, and over 40% of Americans live with medical debt. Other countries often pay half or less of what we do.
Panelists attribute this to anti-competitive practices coming from consolidation in three interconnected markets: pharmacy benefit managers, pharmaceutical manufacturers, and hospitals.
PBMs
Pharmacy Benefit Managers, or PBMs, are middlemen companies that represent a bunch of healthcare customers collectively in negotiations with pharmaceutical companies. On net PBMs are believed to decrease drugs costs, but there is no way for PBM customers to see what prices were negotiated, and frequently rebates aren't passed onto consumers. In Ohio for instance PBMs passed on the full difference of what they paid pharmacies to Medicaid managed plans, and in Delaware PBMs overcharged the State by $24.5 million. The latter practice is called “spread pricing” and has become increasingly common as PBMs buy up pharmacies themselves.
Currently three PBMs - CVS Health, Cigna, and United Health Group - control 80% of the market, with zero pay transparency.
Pharmaceutical Companies:
Often drug prices are pretty arbitrary themselves because brand name drugs make up 75-80% of costs, and patenting laws allow pharma companies to raise those prices as high as the market can bear. One panelist cites that in 2015 over $40 million was spent on drugs that big pharma held excessive patents on, and that the top 12 drugs have over 120 patents for 38 extra years of exclusivity.
Clearly some degree of patent protection is reasonable, but I’m not sure why i.e. the 12 year biologic patent period Trump created offered anything better than the previous 8 year period. Also, see one of my favorite old Scott posts, “Busiprone Shortage in Healthcaristan,” for stories of Sanofi protecting nominally off-patent Insulin by issuing 74 patents for the biological processes to create insulin - not to use these processes themselves but just to prevent any competitor from ever using them.
The Inflation Reduction Act changed Medicare’s ability to negotiate prices somewhat, but pharma companies still get their market exclusivity and even then Medicare can only negotiate the 20 highest cost drugs. Giving Medicare greater ability to directly negotiate prices would likely help quite a bit; this is the model practiced in much of the world and by the US Veterans Administration, which also pays about half of what everyone else does.
For context though, pharmaceutical prices are, shockingly, only about 8.9% of healthcare spending...
Hospitals
...with physicians and hospitals making up over 50%. The hospital panelist thought it was funny the PBM folks were complaining about there only being three major market players. Most hospitals don’t even have one competitor!
According to Representative Claudia Tenny from New York, from 1983 to 2014 the percentage of physicians practicing alone has fallen by half, while the rate of physicians joining practices of 25 or more people has quadrupled. Often when hospitals acquire these physicians they charge high facility fees for seeing doctors “off-campus,” even though the services are the same. The very fact that hospitals can get away with doing this only further encourages consolidation, because they know they can mark up prices for any new acquisitions. Representative Kevin Hern from Oklahoma proposed in the hearing a bill that would supposedly combat this practice.
Hospitals typically make physicians sign non-competitive clauses, meaning they can’t leave and work for a competitor, even in areas as large as the entire state. From 2007-2014 hospital prices increased twice as fast as inpatient physician’ salaries and four times faster than outpatient physician’ salaries.
Often hospitals also lobby State Legislatures for monopolist laws. Nineteen state have Certificate of Public Advantage laws allowing hospitals to evade anti-trust laws and merge in already-concentrated markets. Another Thirty-five states (and DC) have Certificate of Need Laws forcing providers to obtain regulatory permission before they “offer new services, expand facilities, or invest in technology”. These laws act as huge regulatory barriers to entry for small competitors trying to challenge major hospital systems, and the DOJ and FTC have long condemned them for their anticompetitive nature.
Interested to hear people’s thoughts and would love if we could get a regular thing going.
Students from various campuses have occupied the Columbia University campus in New York City in protest of Israel. There reports and videos circulating of protestors harassing Jewish students on or near campus grounds. The NYPD has deployed officers to surround the campus and has established filtration checkpoints to prevent outside agitators from entering campus. Various Columbia alumni have expressed concern with Columbia’s handling of the situation. All classes are now online at least for today. Similar protests are happening at Yale and various other campuses across the country.
Edit: Congressman Josh Hawley has called on President Joe Biden to deploy the National Guard to Columbia and other universities to protect Jewish students on campus.
Edit: NYU has ordered their encampment to disperse and the NYPD is moving in to clear the demonstrators.
Edit: I’m seeing footage of NYU professors being marched out of the campus in zip ties. Cal Poly Humbolt students have barricaded themselves inside a campus building with furniture.
Edit: University of Texas, Austin student protestors are being dispersed by police. And possibly vanned. Protests now seem to be nationwide.
Edit: Mass arrests beginning at USC protests.
Edit: Tasers and rubber bullets being deployed against protestors at Emory University in Georgia.
Edit: There appear to be police snipers monitoring protests at Ohio State University.
More options
Context Copy link