Archives: 01/2018

Ontario Bar Requires Lawyer Pledge To “Promote Equality”

The Ontario bar association has adopted a rule under which all lawyers “must prepare and submit a personal ‘Statement of Principles’ attesting that we value and promote equality, diversity and inclusion,” according to Bruce Pardy in the National Post, who says it’s a bad idea:

In free countries, law governs actions rather than expressions of beliefs. People can be required to obey the speed limit and pay taxes, but they may not be compelled to declare that the speed limits are properly set or that taxes are a good thing. The Supreme Court of Canada has said that forcing someone to express opinions that they do not have “is totalitarian and as such alien to the tradition of free nations like Canada, even for the repression of the most serious crimes.”

The rule and resulting suggested Statements of Principles have been the subject of numerous criticismsdebate, and defenses in Ontario and throughout Canada. According to No Forced Speech, an effort of the Canadian Constitution Foundation, the society rejected a proposal “to create an exemption to the new mandatory Statement of Principles for persons who believe the requirement violates their freedom of conscience.”

Now, per the CBC,

Ryan Alford, an associate professor with the faculty of law at Lakehead University, filed an application in Ontario Superior Court on Monday that seeks an injunction to block the requirement.

“We need to have an understanding about whether or not this is within the law society’s powers under the Law Society Act and whether or not it’s constitutional. I think a lot of people just want clarity on this,” Alford said in an interview.

Good luck to Prof. Alford and the CCF. But the U.S. is not so far behind. In 2016 the ABA adopted Model Rule 8.4 (g), which makes it “professional misconduct” for an attorney to engage in “conduct,” including verbal “conduct,” that “the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.”

Aside from its many other problems — lawyers “discriminate” on the basis of “socioeconomic status” every time they turn down a client they adjudge unlikely to pay their fee — UCLA law professor Eugene Volokh has argued that the ABA rule’s scope “is broad and vague enough to potentially apply to a wide range of political speech, and thus violate the First Amendment.” Texas Attorney General Ken Paxton has declared in an advisory opinion that if his state adopted the ABA model rule, the courts would probably strike it down as an unconstitutional restriction on “freedom of speech, free exercise of religion, and freedom of association.”

The “Test Acts” were a series of enactments in England that excluded from public office and penalized in other ways those who would not swear allegiance to the prevailing religious tenets of the day. There is no good reason to bring back their principles.

Why Does AT&T Want Net Neutrality Regulation?

Regulation is often portrayed as the use of government authority to alter market outcomes away from the interests of firms and toward those of consumers and employees.  In turn, the “story” associated with deregulation is the opposite: Corporations and the powerful use their influence to eliminate public sector controls on their conduct at the expense of consumers and employees.

But if the usual narrative is true how do we explain a full-page ad that AT&T recently published in multiple newspapers, including the Washington Post and the New York Times, calling on Congress to pass new legislation to guarantee internet neutrality?  The short answer is that existing companies often favor regulation that reduces competition in ways not well understood by consumers or legislators.   

AT&T, one of the nation’s largest ISPs and a company that recently dedicated significant resources to support the FCC’s recent repeal of Title II net neutrality regulations, seems like an unlikely proponent of net neutrality legislation. But its position on the policy highlights why companies sometimes support regulations that would appear to harm them.

AT&T’s opposition to Title II net neutrality regulations is not based on a general hostility towards all regulations, but instead stems from the specific types of rules that Title II regulations would impose. Title II of the Federal Communications act of 1934 was originally intended to regulate telephone companies, and gave the government the ability to review and accept or reject telephone rates. During the fight for net neutrality regulation over the last ten years, the FCC sought to regulate the internet under other parts of the Communications Act, but courts continually said no, forcing the Commission to regulate under Title II. Because Title II comes with the possibility of price controls like those imposed on telephone companies, AT&T opposed that regulatory system and called for Congressional action to ensure net neutrality without the possibility of price controls.

As I’ve previously argued, net neutrality regulations are an attempt to settle fights between ISPs and content providers, like Netflix or Hulu. Both sides “need each other to satisfy consumers, but they fight each other to capture the larger share of consumers’ payments.” Title II price controls would have disadvantaged ISPs and benefitted content providers. Now that the debate over whether ISPs should be regulated under Title II is, at least temporarily, seemingly in its favor, why is AT&T continuing to call for new legislation?

Why Is Sen. Ted Cruz so Opposed to Private Property Rights on the Internet?

Recently Sen. Ted Cruz (R-Texas) criticized the large tech companies who host private forums for speech and association. Having questioned representatives of the companies closely, Sen. Cruz concluded:

The pattern of political censorship we are seeing across the technology companies is highly concerning. And the opening question I asked of whether you are a neutral public forum — if you are a neutral public forum, that does not allow for political editorializing and censorship. And if you are not a neutral public forum, the entire predicate for liability immunity under the CDA [Communications Decency Act] is claiming to be a neutral public forum, so you cannot have it both ways.

Sen. Cruz is wrong about the Communications Decency Act. Section 230 of the Act does not require tech companies to provide a “neutral public forum.” The section does say that Congress finds that “the Internet and other interactive computer services offer a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.” That finding does not create a legal obligation. Even if it did, those who support free markets would maintain that private management of internet forums would be the best way to attain diversity, cultural development, and intellectual activity. Beyond that, Section 230 of the CDA freed tech companies from liability for restricting “access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.” In other words, Section 230 helps tech companies act non-neutrally toward user generated content on their platforms! 

The managers of the tech companies may wish to offer a neutral public forum for speech and association, even though the CDA does not require it. But that is very different from the government requiring neutrality. The Fairness Doctrine sought to enforce neutrality on broadcasters, a dangerous policy for the reasons discussed in this Cato Policy Analysis. Having the government manage speech to attain neutrality or fairness or other goals violates the freedom of speech. The managers of the tech companies (as agents of their owners) have the right to oversee these private forums as they see fit. The forums are, after all, private not government property. 

I feel certain that once Sen. Cruz reconsiders his interpretation of CDA, he will return to form and support strong private property rights on the Internet. In doing so, he will also vindicate the speech and associational rights of the customers of the tech companies. 

Leading from Behind on Trade

Right after he took office, President Trump famously withdrew from the 12 nation Trans Pacific Partnership (TPP) trade agreement that the Obama administration had negotiated. That was not too surprising, given that during the campaign, he had referred to the TPP as “a continuing rape of our country.”

But the other 11 TPP nations decided to move forward without the U.S., and on Tuesday they were able to agree on a revised deal (with key changes to the text undertaken in the form of suspensions, so that the original provisions can be reinstated if the U.S. decides to rejoin). By Thursday, President Trump seemed to be rethinking his TPP opposition:

Trump: I like bilateral, because if you have a problem, you terminate. When you’re in with many countries — like with TPP, so you have 12 if we were in — you don’t have that same, you know you don’t have that same option. But somebody asked me the other day, ‘Would I do TPP?’ Here’s my answer — I will give you a big story. I would do TPP if we made a much better deal than we had. We had a horrible deal. The deal was a horrible deal. NAFTA’s a horrible deal, we’re renegotiating it. I may terminate NAFTA, I may not — we’ll see what happens. But NAFTA was a — and I went around and I tell stadiums full of people, I’ll terminate or renegotiate.

Kernen: So you might re-enter, or? Are you opening up the door to re-opening TPP, or?

Trump: I’m only saying this. I would do TPP if we were able to make a substantially better deal. The deal was terrible, the way it was structured was terrible. If we did a substantially better deal, I would be open to TPP.

Kernen: That’s interesting. Would you handicap … ?

Trump: Are you surprised to hear me say that?

Kernen: I am a little bit, yeah, I’m a little taken aback.

Trump: Don’t be surprised, no, but we have to make a better deal. The deal was a bad deal, like the Iran deal is a bad deal, these are bad deals.

Following up on these remarks, he said this in his speech in Davos today:

As I have said, the United States is prepared to negotiate mutually beneficial bilateral trade agreements with all countries. This includes the countries in TPP 11, which are very important. We have agreements with several of them already. We would consider negotiating with the rest, either individually, or perhaps as a group, if it is in all of our interests. 

What should we make of all this? Perhaps Trump is deviously trying to disrupt the momentum of the TPP 11, by encouraging the others to slow down and wait for the U.S.? More likely, TPP was in the news, and Trump therefore decided to talk about it in his usual incoherent way. I encourage reporters to press Trump and other U.S. trade officials on what exactly the U.S. has in mind now for the TPP, but I would be surprised if these remarks signal any change in U.S. trade policy.

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More Evidence of the High Collateral Damage of a War on Cash

The leading arguments for banning large-denomination currency notes are those made in a much-cited working paper by Peter Sands and at book length by Kenneth Rogoff. They have been rebutted persuasively by Pierre Lemieux and Jeffrey Hummel in their respective reviews of Rogoff’s book. I have previously offered my own rebuttals here and here.

The justification for returning to the topic now is that two recent reports, issued by the Federal Reserve Bank of San Francisco and by the European Central Bank, provide new evidence on the public’s use of large-denomination notes. This evidence is essential to any serious evaluation of proposals to ban large-denomination in notes in the United States and Europe.

The Sands and Rogoff argument assumes that the users of large bills are almost entirely criminals; use by innocent citizens is rare. Rogoff writes in his book:

The bulk of US cash in circulation cannot be accounted for by consumer surveys. Obviously, if consumers are holding only a small fraction of all cash outstanding, they cannot possibly be holding more than a small fraction of the $100 bills in circulation, since $100 bills account for nearly 80 percent of the value of US currency.

By contrast: “The drug trade is a famously cash-intensive business at every level.”

President Trump’s Amnesty Plan

The White House today released four principles for immigration reform.  Overall, the Trump plan would cut legal immigration and spend about $25 billion on border security and a wall.  In exchange, the Trump administration has decided to support an amnesty and citizenship for an estimated 1.8 million DREAMers. 

It’s unclear how the administration estimates that only 1.8 million illegal immigrant DREAMers would gain citizenship as the number could be very different from that.  Most likely, they assume that many people could have earned DACA but did not.    

The conservative reaction to Trump’s support for amnesty and citizenship, even though he’s always said that he could accept such a compromise, has been swift.  Senator Ted Cruz (R-TX) preempted the rollout of Trump’s principles by stating, “I do not believe we should be granting a path to citizenship to anybody here illegally …  Doing so is inconsistent with the promises we made to the men and women who elected us.”  Cruz’s sentiment is consistent with his position during the 2013 debate over S. 744 where he favored a legalization but not an amnesty and path to citizenship for illegal immigrants.

Senator Cruz employed even more cruel rhetoric when he said, “For some reason that [amnesty] to me is utterly inexplicable, we see Republicans falling all over themselves to gallop to the left of [former President] Obama in a way that is contrary to the promises made to the voters who elected us.”  Any comparison of President Trump to former-President Obama by a Republican is evidence that Trump’s amnesty plan will not be well received.

Representative Steve King (R-IA) has repeatedly said that he won’t vote for amnesty.  Although he hasn’t spoken about Trump’s amnesty proposal, we can safely assume that the conservative Iowa congressman, who is nothing if not consistent, is a hard “no.”  Virginia Republican gadfly and proud Trump-supporter Corey Stewart trashed Trump’s amnesty.  Republican primary challengers from Mississippi to Nevada are furious at the betrayal.

Amnesty is a toxic word among conservative immigration restrictionists.  They spent 25 years calling every proposal they disliked “amnesty” and mobilizing large numbers of people to oppose them.  The extent to which the conservative media describes President Trump’s immigration plan as amnesty will determine how unpopular it is.  The media outlet Breitbart labeled President Trump “amnesty Don” after they heard he would be supporting amnesty and a path to citizenship for DREAMers.  When the plan was released they called it “Don’s Amnesty Bonanza” and compared it to other “failed” amnesties.  The Washington Times headline is “Trump amnesty to cover 1.8 million Dreamers; triple Obama’s DACA,” – comparing Trump to Obama is toxic to the president’s base.  The story goes on to describe the amnesty as “generous.”  The Drudge Report’s Twitter account led with “Triple Obama’s DACA.”

Heritage Action, the Heritage Foundation’s political outreach arm, condemned President Trump’s amnesty as harshly as it could in order to maintain its ties to the administration.  Heritage Action’s press release called President Trump’s plan an amnesty, said amnesties always grow in size and scope, and then raised concerned about the Gang of Eight 2013 S. 744 immigration reform bill.  The Federation for American Immigration Reform is emphasizing its anti-amnesty stance to appeal to their supporters.  Daniel Horowitz, Senior Editor of conservativereview.com called it a “@#$% hole of an amnesty.”  Last, Mark Krikorian of the nativist Center for Immigration Studies fiercely criticized the Four Pillars in a post at National Review Online calling it “The Art of the Choke.”  That last piece is most significant as Krikorian was long rumored to be the Trump immigration whisperer.  

Worse than the media outlet and politicians, twitter commentators are going wild in opposition and fury at President Trump’s support for amnesty.  Interestingly, so are a lot of groups that represent DREAMers.  Check out this strongly worded press release to Four Pillars put out by United We Dream.  That is a big loss as the expanded amnesty portion of the Trump Four Pillars was meant to appeal to them.  If the DREAMer groups aren’t on board and the conservative base and media are opposed, Democrats will be emboldened to oppose this.

The amnesty portion of Trump’s plan is better than many other Republican options but the cuts in legal immigration are too great.  We’ve suggested other workarounds that won’t cut legal immigration that both the administration and Congress should consider.  At this stage, President Trump’s amnesty plan appears to be dead on arrival among his base, conservative Republicans, in the right-wing media, and DREAMers.  The best thing that may come from this is that it undercut the Goodlatte bill.

When Our Faces Are Our “Papers”

A passenger on a bus at Fort Lauderdale’s Greyhound station recently recorded disturbing footage of Customs and Border Protection (CBP) officers walking up the bus’ aisle and asking for proof of citizenship. Although nothing new, it’s sad to see American law enforcement conducting the kind of “Papers Please” stops that many Americans usually associate with foreign authoritarian governments. Thanks to advances in facial recognition technology, CBP and other law enforcement agencies will soon not have to ask us for identification. Our faces will be our papers.

 

Under current law and Supreme Court precedent, CBP’s behavior on the Greyhound bus was not illegal. Thanks to 8 U.S.C. § 1357(a)(3), CBP officers within 100 miles of the border can board and search “any railway car, aircraft, conveyance, or vehicle” in order to prevent illegal immigration. Two-thirds of the people living in the United States live within this 100-mile zone, which encompasses entire states, including Florida.