Category: Law

What should I ask Rachel Harmon?

I will be doing a Conversation with her, and she is a professor of law at the University of Virginia with a specialty in policing.  From her home page:

Rachel Harmon’s scholarship focuses on policing and its legal regulation, and her work has appeared recently in the NYU, Michigan and Stanford law reviews, among others. She teaches in the areas of criminal law and procedure, policing and civil rights. Harmon often advises nonprofit organizations and police departments on legal issues involving the police. She is currently associate reporter for the American Law Institute’s project on policing, and in fall 2017, she served as a law enforcement expert for the Independent Review of the 2017 Protest Events in Charlottesville, Virginia.

Here is her scholar.google.com profile.  So what should I ask her?

Our regulatory state is broken, installment #1837

Americans returning from China landed at U.S. airports by the thousands in early February, potential carriers of a deadly virus who had been diverted to a handful of cities for screening by the Centers for Disease Control and Prevention.

Their arrival prompted a frantic scramble by local and state officials to press the travelers to self-quarantine, and to monitor whether anyone fell ill. It was one of the earliest tests of whether the public health system in the United States could contain the contagion.

But the effort was frustrated as the C.D.C.’s decades-old notification system delivered information collected at the airports that was riddled with duplicative records, bad phone numbers and incomplete addresses. For weeks, officials tried to track passengers using lists sent by the C.D.C., scouring information about each flight in separate spreadsheets.

“It was insane,” said Dr. Sharon Balter, a director at the Los Angeles County Department of Public Health. When the system went offline in mid-February, briefly halting the flow of passenger data, local officials listened in disbelief on a conference call as the C.D.C. responded to the possibility that infected travelers might slip away.

“Just let them go,” two of the health officials recall being told.

Here is the full NYT piece, thorough, excellent, and scary throughout, and it shows a first-rate understanding of bureaucracy.  Don’t forget the CDC budget has risen steadily in real terms.

Model this New York City police force

Last night, and some previous nights, many storefronts in Manhattan were trashed, there was looting in Soho, or how about this description from Rachel Olding at The Daily Beast?:

Hard to describe how rampant the looting was tonight in Midtown Manhattan and how lawless it was. Complete anarchy. Literally hundreds of stores up and down Broadway, Fifth Ave, Sixth Ave. Kids ruling the streets like it was a party.

Now, those are among the most visible and “high value” spots in the whole city and the NYPD has over 38,000 police to draw upon.  So what is the best model of why all that trouble happened and indeed was allowed to happen?  I see a few candidates:

1. Those police are not sufficiently well trained.

2. Those police are trained but they are afraid of confronting protestors and so they don’t do it.

3. The mayor de facto doesn’t want the police to be too involved, as that might be unpopular with swing voters in the primaries or even the general election.

4. The police union insists, de facto, that not many police be sent directly into such confrontations.

5. There is a general lack of accountability, and so there is failure at multiple levels, and so many good things simply do not happen, but for reasons which are not always entirely concrete.

6. The police do not have the right technology to handle these kinds of problems.

Which is it, and which other hypotheses am I neglecting?

As a more general observation, if this problem cannot be solved, complaining about Trump holding the Bible and the tear gas on the way to the church ultimately will fall upon deaf ears.  Ultimately the American public are not going to side against “the thin blue line” (i.e., the police), so to win all those important civil liberties victories you also need the police doing the proper job effectively. Maybe I picked the wrong Google terms but “why didn’t New York police stop rioters” does not in fact yield anything substantive on the question I am asking.  How can that be?  While you’re at it, model that too!

Addendum: One reader hypothesis is to send a signal to the mayor for criticizing them. Another is here: “Similar to Baltimore, the police in Minneapolis will make it clear that looting and widespread private property destruction will be tolerated for the remainder of the protests as a way to conflate protesters and looters and “teach a lesson to” their liberal civilian bosses

The plans for Greece’s reopening to tourists

In the European Union Greece is moving the quickest, but still this does not sound so appealing:

Phase 1 – Until 15 June
International flights are allowed only into Athens airport.
All visitors are tested upon arrival and are required to stay overnight at a designated hotel. If the test is negative, then the passenger self-quarantines for 7 days. If the test is positive, the passenger is quarantined under supervision for 14 days.

Phase 2 – Bridge phase- 15 June to 30 June
International flights are allowed into Athens and Thessaloniki airports.
If your travel originated from an airport not in the EASA affected area list (https://www.easa.europa.eu/SD-2020-01/Airports#group-easa-downloads), then you are only subject to random tests upon arrival.
If you originate from an airport on the EASA affected area list, then you will be tested upon arrival. An overnight stay at a designated hotel is required. If the test is negative then the passenger self-quarantines for 7 days. If the test is positive, the passenger is quarantined under supervision for 14 days.

Here is much more detail.  Via Yannikouts.

That was then, this is now, Minneapolis racial animus edition

Are you familiar with the earlier history of Minneapolis, say from the 1960s and 1970s?  From an article by Jeffrey T. Manuel and Andrew Urban, here is one passage about two mayors:

In 1969, four-term Democratic-Farmer Labor (DFL) mayor and former University of Minnesota political science professor Arthur Naftalin declined to run for a fifth two-year term as the mayor of Minneapolis, leaving the contest open amid the social turbulence of the late 1960s. Naftalin was a close associate of former Minneapolis mayor Hubert H. Humphrey and a practitioner of Humphrey’s brand of liberalism. They believed that government’s role was to manage and coordinate different interest groups within society, such as business leaders, members of organized labor, and racial minorities, so that the city would function efficiently and social conflict could be avoided. By allocating money to various social programs, they believed urban problems such as crime and poverty could be solved. In an unexpected move, Charles Stenvig, a 41-year-old detective in the Minneapolis police department and president of the police federation, threw his hat into the ring as an independent candidate for mayor. Running an unconventional campaign that spent little money and relied on volunteer labor, Stenvig won the 1 969 election by pledging to “take the handcuffs off the police” and to crack down on “racial militants,” criminals, and student protesters. Capturing 62 percent of the vote against a moderate Republican opponent, Stenvig shocked the city’s political establishment with his convincing victory. Running again as an independent in 1971, Stenvig defeated Harry Davis, Minneapolis ‘s first black mayoral candidate, receiving a remarkable 71 percent of the vote.

And:

Naftalin’s connection with academia was a sharp contrast to Stenvig’s open animosity toward higher education.

And:

Naftalin argued that with “proper computers,” a single executive authority could easily – and rationally – control a widely- scattered metropolitan area. For Naftalin, a rational executive would have to make unpopular decisions based on his or her expert knowledge of what was best…

And:

Thus, at several points during his career Stenvig tried to censor what he believed were immoral publications…

And this:

At the national level, many observers were surprised that race could even be a political issue in Minneapolis given the city’s numerically small minority population… Although the city’s African American population was relatively small it was concentrated in several neighborhoods, which led to frequent incidents of alleged police harassment and the belief that residents of black neighborhoods were treated unfairly by the overwhelmingly white police force.

And:

When a 12-year-old African-American boy was attacked by a police dog and dragged down the street by two policemen, many saw it as confirmation of Stenvig’s attitude toward blacks.

Finally:

Far from a naïve reactionary, Stenvig presented a political ideology that was sharply critical of liberalism and rejected social scientific knowledge and abstractions as useful guides for governance.

The article is interesting throughout, and is likely to remain so.  And you can read here about the 1967 race riots in northern Minneapolis.

Conor Friedersdorf interviews me on the regulatory state and the pandemic

For Atlantic, here is one excerpt:

“Our regulatory state is failing us.”

And to troll some of you, here is another bit:

Friedersdorf: Libertarians and small-government conservatives are highly skeptical of the regulatory state. What do they get wrong?

Cowen: Very often, the alternative to regulation is ex post facto reliance on the courts and juries to redress wrongs. Of course, the judiciary and its components are further instruments of governments, and they have their own flaws. There is no particular reason, from, say, a libertarian point of view, to expect such miracles from the courts. Very often, I would rather take my chances with the regulators.

Also, let’s not forget the cases where the regulators are flat-out right. Take herbal medicines, penis enlargers, or vaccines. In those cases, the regulators are essentially correct, and there is a substantial segment of the population that is flat-out wrong on those issues, and sometimes they are wrong in dangerous ways.

Recommended, there is much more at the link.

*The Puzzle of Prison Order*

That is the title of the new and excellent book by David Skarbek, and the subtitle is Why Life Behind Bars Varies Around the World.  Here is part of the Amazon summary of its contents:

Many people think prisons are all the same-rows of cells filled with violent men who officials rule with an iron fist. Yet, life behind bars varies in incredible ways. In some facilities, prison officials govern with care and attention to prisoners’ needs. In others, officials have remarkably little influence on the everyday life of prisoners, sometimes not even providing necessities like food and clean water. Why does prison social order around the world look so remarkably different?

Here is one excerpt:

…Nordic prisons have a much smaller proportion of prisoners to members of staff, about one prisoner for every staff member.  These jobs attract high-quality employees, and in Finland and Norway, it is common for there to be an excess supply of applicants.  Working in corrections is a more attractive career than it is in many other countries.  The fact that students sometimes work as prison officers suggests that the environment in Nordic prisons is more relaxed than that in many other prisons and the work is socially acceptable.  Many Nordic prison officers have university and vocational education.  For example, about 20 percent of staff in Swedish men’s prisons have university degrees and staff members participate in a 20-week in-service training program and take 10-week university courses on sociology and social psychology.  In Norway, prison officers receive two years of training at full salary and nearly all have tertiary educational qualifications.  By comparison, California correctional officer training lasts 12 weeks and requires only a high-school diploma.

The book is due out from Oxford University Press on August 3rd.

The case for a market allocation of vaccines

Or a partial such allocation, at least.  Here is my latest Bloomberg column:

The renowned economist Erik Brynjolfsson recently asked: “At least so far, I haven’t seen any one suggesting to use the market system to allocate vaccines. Not even those who strongly advocate it in other areas. Why is that?”

As one of several people copied at the bottom of the tweet, I feel compelled to take up the challenge.

I readily admit that a significant portion of the vaccines, when they come, should be allocated by non-market forces to health care workers, “front line” workers, servicemen on aircraft carriers, and so on.  Yet still there is room for market allocation, especially since multiple vaccines are a real possibility:

If you had to choose among those vaccines, wouldn’t it make sense to look for guidance from market prices? They will reflect information about the perceived value of both protection and risk. On the same principle, if you need brain surgery, you would certainly want to know what the brain surgeon charges, although of course that should not be the only factor in your decision.

And:

The market prices for vaccines could be useful for other purposes as well. If scientific resources need to be allocated to improve vaccines or particular vaccine approaches, for instance, market prices might be useful signals.

Note also that the scope of the market might expand over time. In the early days of vaccine distribution, health-care workers will be a priority. Eventually, however, most of them will have access to vaccines. Selling off remaining vaccine doses might do more to encourage additional production than would bureaucratic allocation at a lower price.

Say China gets a vaccine first — how about a vaccine vacation in a nearby Asian locale (Singapore? Vietnam?) for 30k?  Unless you think that should be illegal, you favor some form of a market in vaccines.

In any case, there is much more at the link.  Overall I found it striking how few people took up Erik’s challenge.  Whether or not you agree with my arguments, to me they do not seem like such a stretch.

Our regulatory state is failing us

You don’t think airlines can just provide hand sanitizer to passengers, do you? On Tuesday the FAA wrote to American Airlines granting permission, and the letter they sent (.pdf) offers a window into process the airline had to go to in order to secure the government’s blessing.

Tuesday’s correspondence came from the FAA’s American Airlines Certificate Management Office in Irving, Texas. Imagine having a local office of a federal agency dedicated to your business, with its own letterhead.

American wanted permission to provide “personal use quantities of hand sanitizer gel and sanitizing wipes to customers prior to boarding and/or distributed during flight.” That means there would be hand sanitizer on the aircraft, and that falls within the FAA’s jurisdiction.

Before writing for permission, a team from American Airlines held two separate meetings with FAA inspectors, from two separate FAA offices – the airline’s direct regulators in their certificate management office, and also with the Office of Hazardous Materials Safety. The purpose of these meetings was “to discuss the 14 CFR part 5 required safety risk assessment” required to have hand sanitizer on board.

Passengers and crew are permitted to carry hand sanitizer, consistent with 49 CFR §175.10. And shippers can carry hand sanitizer, consistent with 49 CFR §173.150(g). For the airline to carry and distribute it, though, 49 CFR §175.8 (a)(4) requires permission of the Administrator of the FAA.

And:

The FAA issued a finding that American’s proffered plan to offer hand sanitizer to passengers “meets conditions for FAA approval allowed in 49 CFR §175.8 (a)(4).” Even so, the specific products that the airline sources for use must be “approved by the AA Chemical Review Board (CRB) to meet the above CFR limitations and will be tracked on an internal reference list.”

Furthermore, permission is contingent on “mitigations and procedures included in the AA RWM ‘Corp SMS and Team – 200512- 01 / Hand Sanitizer in Amenity Kits and Snack Bags’ [being] “completed and complied with.” Any deviations require advance coordination with the dedicated FAA Certificate Management Office for American Airlines “prior to any further flights that provide personal use quantities of hand sanitizer gel and sanitizing wipes to customers.”

A small matter, yes, but indicative of the larger whole.  Here is the full post from Air Genius Gary Leff, via Lama.

Three myths about federal regulation

By Patrick A. McLaughlin and Casey Mulligan, Patrick of course being from GMU/Mercatus:

Despite evidence to the contrary, three common myths persist about federal regulations. The first myth is that many regulations concern the environment, but in fact only a small minority of regulations are environmental. The second myth is that most regulations contain quantitative estimates of costs or benefits. However, these quantitative estimates appear rarely in published rules, contradicting the impression given by executive orders and Office of Management and Budget guidance, which require cost-benefit analysis (CBA) and clearly articulate sound economic principles for conducting CBA. Environmental rules have relatively higher-quality CBAs, at least by the low standards of other federal rules. The third myth, which is particularly relevant to the historic regulations promulgated during the COVID-19 pandemic, is the misperception that regulatory costs are primarily clerical, rather than opportunity or resource costs. If technocrats have triumphed in the regulatory arena, their victory has not been earned by the merits of their analysis.

Here is the link to the NBER working paper.

Rewatching *Dirty Harry* (no real spoilers)

Released in 1971, as usual with San Francisco movies one can see the reach of NIMBY — the city doesn’t look much larger or busier today.  The subtext of the film is that law and order is collapsing, yet San Francisco was far cleaner back then and street harassment never is presented as a risk.  Even the red light district of 1971 seemed better kept than many of the nicer parts circa 2020.

You can see how much the debate has shifted from “how the police treat the guilty” to “how the police treat the innocent.”

It is startling to see actual San Francisco children in the movie — they did not seem to be hired extras.

Yana was shocked that Clint Eastwood did not direct the movie, I was amazed when he started directing.

Overall it held up remarkably well I thought.  Virtually every scene is good, and its ability to offend both sides (and indeed other sides too) remains evident.

The Japan model

So what is the Japan model? First, it is a cluster-based approach, derived from a hypothesis obtained from an epidemiological study based on Chinese data and conducted on the Diamond Princess cruise ship that entered the port of Yokohama on February 3, 2020. This hypothesis accounts for the many passengers who were not infected with the coronavirus despite having had close contact with infected persons. It posits that the explosive increase in infected persons is a result of the high transmissibility of certain infected individuals, which forms a cluster. Infected individuals with even higher transmissibility appear from these clusters to form more clusters and infect many others. Based on this hypothesis, under the cluster-based approach, each cluster is tracked to the original infection source and persons with high transmissibility are isolated to prevent the spread of infection. For this reason, pinpoint testing is carried out and broad testing of the population is not required, in contrast to the approaches taken in other counties.

This cluster-based approach is conditioned on an environment in which there are only a few infected persons and clusters are detectable at an early stage. In February 2020, when the spread of infection was observed in Hokkaido, a cluster-based approach was adopted. As a result, Hokkaido was successfully able to contain its outbreak.

For the cluster-based approach to be effective, protective measures at airports and ports are important. Hokkaido has the advantage of being an island, making it comparatively easy to control the inflow of infected people. Behavioral changes are also required. On February 28, 2020, acting without legal basis, Hokkaido Governor Naomichi Suzuki declared a state of emergency and called on residents to refrain from going outside. Residents took the call seriously, and are responsible for the success of the cluster-based approach. Following its success in Hokkaido, the cluster-based approach was adopted nationally. On February 25, 2020, a Cluster Response Team was established in the Ministry of Health, Labour and Welfare.

Here is more from Kazuto Suzuki, with other points of note.

The economics of Covid-19 liability

The more you are interested in test, track, and trace, the more you should favor at least partial liability waivers for business, at least that is how I see it.  Here is an excerpt from a new paper by Daniel Jacob Hemel and Daniel B. Rodriguez:

Ex ante (before an exposure), the specter of liability generates incentives for businesses to take precautions that reduce the risk of virus transmission. Ex post (after an exposure), fear of liability may deter businesses from proactively informing customers and workers that they have been exposed to the virus through the business’s operations. The desire on the part of businesses to spare themselves from litigation may interfere with comprehensive contact-tracing efforts. To minimize the potentially perverse ex-post consequences of liability without sacrificing significant ex-ante benefits, the article proposes a limited safe harbor from liability for businesses that promptly contact customers and workers after learning about a possible exposure.

Again, here is my short liability study with Trace Mitchell of Mercatus.