Class action tolling means suspending time limits on future lawsuits while a class action suit is pending. This is distinct from class action trolling which is when the Ninth Circuit adopts a deliriously liberal rule and dares the Supreme Court to overturn it. Both phenomena were involved in today’s unanimous Supreme Court opinion in China Agritech v. Resh. In the 1974 case of American Pipe & Construction v. Utah the Court had adopted a rule permitting individual claimants to file otherwise-tardy actions after a court had declined to certify a class action. The American Pipe rule is itself decidedly indulgent toward the class action device, but it took the Ninth Circuit to take a crucial extra step off the Santa Monica pier by holding that the late-arriving claimants should themselves be able to ask for certification as a class action. After all, the first try at certification might have been based on a flawed legal strategy or incomplete factual record. Why not give our friends in the bar a second bite? Or a third bite, or an nth: in fact the case that reached the high court was the third class action in a row attempted on the same underlying facts, a securities dispute. To almost everyone but the Ninth Circuit, the resulting danger was clear enough: without any real need to accept “no” for an answer, class action lawyers could just come back again and again with new tame plaintiffs until they find a judge willing to grant certification, the step that tends to guarantee a payday in the class action business. Today’s unanimity is significant. On procedural and jurisdictional issues, at least, today’s liberal wing on the Court has sometimes been willing to unite with the Rehnquist-Scalia-Roberts wing to recognize and rein in the dangers of lawyer-driven overlitigation, the tactical use of lawsuits as a weapon, and so forth. Justice Ruth Bader Ginsburg, who wrote today’s opinion, has more than once joined and sometimes led such coalitions. By contrast, Justice Sonia Sotomayor has often been found alone and out on a limb in favor of a more litigation-friendly position, which happened again today: she joined in a concurrence agreeing that the Ninth Circuit had gone too far but seeking to limit the Court’s holding to securities suits governed by the Private Securities Litigation Reform Act of 1995 (PSLRA). The Senate might want to quiz future liberal nominees — yes, there will be such — on whether they more favor the Ginsburg or the Sotomayor approach to these issues.

From the St. Johnsbury, Vermont Caledonian Record:

divHT: Ethan Allan Institute founder and vice president John McClaughry.

Some people are skeptical of taking specific statements President Trump makes too seriously/​literally, and I can understand why. Nevertheless, in the midst of mostly aggressive trade rhetoric, every now and then he calls for more trade liberalization. This is from Trump’s Saturday press conference at the G7 meeting:

Q Mr. President, you said that this was a positive meeting, but from the outside, it seemed quite contentious. Did you get any indication from your interlocutors that they were going to make any concessions to you? And I believe that you raised the idea of a tariff-free G7. Is that —

THE PRESIDENT: I did. Oh, I did. That’s the way it should be. No tariffs, no barriers. That’s the way it should be.

Q How did it go down?

THE PRESIDENT: And no subsidies. I even said no tariffs. In other words, let’s say Canada — where we have tremendous tariffs — the United States pays tremendous tariffs on dairy. As an example, 270 percent. Nobody knows that. We pay nothing. We don’t want to pay anything. Why should we pay?

We have to — ultimately, that’s what you want. You want a tariff-free, you want no barriers, and you want no subsidies, because you have some cases where countries are subsidizing industries, and that’s not fair. So you go tariff-free, you go barrier-free, you go subsidy-free. That’s the way you learned at the Wharton School of Finance. I mean, that would be the ultimate thing. Now, whether or not that works — but I did suggest it, and people were — I guess, they got to go back to the drawing and check it out, right?

…

In fact, Larry Kudlow is a great expert on this, and he’s a total free trader. But even Larry has seen the ravages of what they’ve done with their tariffs. Would you like to say something, Larry, very quickly? It might be interesting.

MR. KUDLOW: One interesting point, in terms of the G7 group meeting — I don’t know if they were surprised with President Trump’s free-trade proclamation, but they certainly listened to it and we had lengthy discussions about that. As the President said, reduce these barriers. In fact, go to zero. Zero tariffs. Zero non-tariff barriers. Zero subsidies.

It’s hard to know what to make of this “free-trade proclamation,” because reducing trade barriers is what many other countries have been promoting, and Trump keeps resisting. That’s what TPP was, and that’s what NAFTA is. So how is everyone supposed to react to his call for such broad trade liberalization? One possible reaction, which may or may not be productive, is that the other G7 leaders should accept his proposal, publicly endorse it, and suggest a date to begin negotiations. 

The Canadians can do this in the context of the NAFTA talks. The EU could propose new transatlantic trade talks. Japan could remind Trump about the TPP, or agree to bilateral talks. (And everyone seems to accept that subsidies have to be negotiated multilaterally, so maybe the better idea is to propose that this all be done at the WTO, rather than through bilateral talks.)

Unfortunately, I don’t think there is much hope of convincing Trump and his trade team that their view of trade deficits is misguided (we can line up a thousand economists to explain why it is misguided, but it won’t change their minds). However, I can imagine that talk of specific tariffs, barriers, and subsidies could be helpful here. Those do exist and are a problem. Trump may genuinely believe there is an imbalance, with Canadian, EU and Japanese tariffs, trade barriers, and subsidies far outweighing U.S. ones. A negotiation would be an opportunity to show him the reality. When he points to Canadian agriculture tariffs, the Canadians can point to U.S. agriculture subsidies. When he points to European auto tariffs, the Europeans can point to U.S. truck tariffs. And then they can keep going down the list: Buy America procurement policies, the Jones Act, barriers to trade in legal and medical services, anti-dumping abuses, etc.

Now, I’m not saying there is a great chance of success on any of this. Most likely, the best we could hope for is that these talks go about the same as other talks, with a little progress on a few tariffs, trade barriers, and subsidies. That’s the nature of these things. But Trump just called for going “tariff-free,” “barrier-free,” and “subsidy-free,” and it seems to me that taking him up on this may be better than the alternative, which right now looks like it could be escalating tit-for-tat tariffs.

I was crushed by Charles Krauthammer’s moving announcement here. 

When I was just out of college–many years ago now–I worked briefly as his research assistant. He was as kind and generous in person as he is sharp and incisive in print. What a blow to lose his wit, independence, and integrity. 

Some people want schools to have lighthearted, warm environments. Some want them to delve into social commentary, even if it is uncomfortable. Some students just want to wear what they want to wear. And some people either don’t want any of those things, or disagree when lines have been crossed. Here come the battle trends for May.

• Lighthearted or Wrong-Headed? “It’s all fun and games until someone loses an eye” is a warning I heard a lot when I was a child. But it turns out we don’t all agree when fun and games turns into something more serious. In May we saw three conflicts that revolved around when someone trying to have fun may have crossed lines, and public school authorities punished them. In South Carolina a white teacher was recorded in a viral video standing on the desk of a sleeping, African-American student and pulling his hair, among other things. The district reportedly forced the teacher to retire, to the consternation of many parents and even the student’s father, who said he “felt like the incident was done in humor.” The teacher was reinstated after her lawyer and district council met to discuss the matter. In Texas, a principal had a tradition of having children come to her office on their birthdays to receive a voluntary, symbolic spanking. It elicited at least three objections, and the principal discontinued the practice. Parent Heather Redder liked the tradition, and said some people are “not used to a small town community… People that move here from the big city, they don’t realize, and they’re not used to this.” Finally, a senior prank went wrong in Independence, Missouri, when a student posted a Craigslist ad selling his high school “due to the loss of students coming up.” The ad was referring to graduating students, but district officials saw it as a potential threat and punished the prankster, forbidding him to walk at graduation. The ACLU came to his defense. “In the hometown of U.S. President Harry Truman and in a place named after one of our nation’s key principles, ‘freedom,’ we hope that the district reconsiders its position and encourages the freedom of speech of our nation’s next generation of leaders,” said ACLU Missouri legal director Tony Rothert.
• Social Commentary, Or Promoting Violence? Since the horrific Parkland school shooting, gun violence has become a scorching political topic. But where is the line between commenting on violence and promoting it? Two districts saw division over the appropriateness of art commenting on gun violence. In Leander, Texas, some parents objected to the middle school showing the video for the social commentary song “This is America” by Childish Gambino, in which among other targets Gambino is shown shooting a church choir. One father said, “a lot of stuff that’s shown is true but it’s just not right to show to a middle school environment.” In Tacoma, Washington, a principal who is also a rapper was the focus of conflict over lyrics that some thought promoted school shootings. “Give me a reason just to load up a rifle, Pull the fire alarm in the lobby of my high school,” went some of the words. “Leave the halls bloody like a high noon tycoon.” Objected one parent: “No one in a position of authority who is mentoring or monitoring our children, my children, anyone’s children, should be glorifying shooting up a school.” The principal said he wasn’t trying to glorify violence, but to tell a “story of something that happened to a young person that inspired and caused him to commit acts of violence.”
• Dress Codes: Contending over what is acceptable to wear in school is constant, and remained so in May. In two states we saw officials telling girls to cover up lest they be distracting to boys, or maybe just not live up to community norms of propriety. We also saw a student get punished—and subsequently sue his district—for refusing to remove a t‑shirt that read, “Donald J. Trump Border Wall Construction Co.” and “The Wall Just Got 10 Feet Taller.” The shirt violated the dress code prohibiting “clothing decorated with illustrations, words, or phrases that are disruptive or potentially disruptive, and/​or that promote superiority of one group over another.” Said the student’s lawyer, “If people are offended by his shirt — that’s their right to be offended. But it’s also his right to have his opinion, as well.” In Montana, there was a lengthy standoff over a Confederate flag sweatshirt. Finally, May saw a battle over a student who had enlisted in the Army and wanted to wear an Army sash at graduation. The request was denied, but not without a struggle. It came down to the student’s pride in her accomplishments and country versus a school’s need to maintain order. While defending the district’s patriotism, the district superintendent said “the rule is in place to prevent student’s writing the silly ‘Hi, Mom’ on the hat and goofy things. We’re trying to keep our graduations somewhat dignified.”

As always, the monthly battles weren’t restricted to these trends. We also witnessed trouble over revolutionary themed prom tickets, disposing of pest animals, evolution, and more. And we had two surveys on our Facebook page. The first asked whether pulling the sleeping student’s hair was “OK” for the teacher to do. 21 percent of respondents said yes, 79 percent no. The second asked about constantly contested territory, the student vaeldictory speech that exalts God, stemming from this skirmish. We asked, “Should valedictorians be able to thank God in a public school graduation speech?” Three quarters of respondents answered yes, one quarter no.

Back in a month with the June Dispatch, then maybe the fighting will subside during summer vacation. Maybe…

Having no specific legal definition, “hate speech” is a vague term. It is generally understood to mean speech that expresses hateful or bigoted views about certain groups that historically have been subject to discrimination. Concerned by the impact of hate speech on vulnerable populations, social justice advocates see sense in restricting this type of speech.

However, these types of laws often fall hardest on the very people they are intended to protect. Nadine Strossen explores this idea in her new book, Hate Speech: Why We Should Resist It with Free Speech, Not Censorship. (Hereafter all page citations are to this book).

Strossen draws attention to the fact that prohibitions of “hate speech” are characterized by unavoidable vagueness and overbreadth. A law is “unduly vague” (and unconstitutional) when people “of common intelligence must necessarily guess at its meaning.” “Hate speech” laws are inherently subjective and ambiguous in their language, with the use of words like “insulting,” “abusive,” and “outrageous.” Specific to laws about speech, vagueness “inevitably deters people from engaging in constitutionally protected speech” (69).

One person’s “hate speech” is another’s anti-“hate speech.” Strossen cites many examples in which certain religious views are assailed as “hate speech” against LGBT individuals, while critiques of those religious views are attacked as anti-religious “hate speech.”

This issue is also prevalent on campus, exemplified by a situation at Harvard University in which a group of students hung a confederate flag from their dorm room. In response, other students hung swastikas from their windows.

Strossen notes the irony of the situation:

Of course, the swastika is deeply identified with Hitler’s anti-Semitic and other egregiously hateful ideas, not to mention genocide. However, the Harvard Students who hung the swastika were trying to convey the opposite message, condemning the racism that the Confederate flag connoted to them by equating it with swastika. So should these swastika displays count as “hate speech”—or as anti- “hate speech” (78–79)?

Deciding what should count as “hate speech” leaves room for decision-makers to err or disagree about whether an expression constitutes “hate speech.” This arbitrariness of these laws on campus means that “…all members of the campus community face enforcement that is unpredictable and inconsistent at best, and arbitrary, capricious, and discriminatory at worst” (77).

Moreover, “given the pervasiveness of individual and institutional bias,” the government is likely to enforce “hate speech” laws, as it has other laws, to the disadvantage of the disempowered and those with unpopular ideas. David Cole, ACLU legal director reiterates this point:

Here is the ultimate contradiction in the argument for state suppression of speech in the name of equality: it demands protection of disadvantaged minorities’ interests, but in a democracy, the state acts in the name of the majority, not the minority. Why would disadvantaged minorities trust representatives of the majority to decide whose speech should be censored (81)?

Strossen observes this phenomenon even in countries with established democratic governments. Take Canada, for example, which is more willing to restrict certain forms of speech than the United States. The Canadian Supreme Court explains the word “hatred,” (as used in their laws) as “unusually strong and deep-felt emotions of detestation, calumny and vilification”; and “enmity and extreme ill-will … which goes beyond mere disdain or dislike.” How confident would you be in distinguishing between speech that conveys “disdain,” which not punishable, and speech that conveys “detestation” or “vilification,” which is punishable? The consequence of this innate vagueness and overbreadth is illustrated in the following case:

Canadian customs seized copies of a book being imported from the United States because it was dangerous, racist and sexist. The book was Black Looks: Race and Representation by bell hooks, African-American feminist scholar who was then a professor at Oberlin College. hooks describes the impact of this decision in “Outlaw Culture: Resisting Representations”:

It seemed ironic that this book, which opens which opens with a chapter urging everyone to learn to “love blackness,” would be accused of encouraging racial hatred. I doubt that anyone at the Canadian border read this book: the target for repression and censorship was the radical bookstore, not me…it was another message sent to remind radical bookstores—particularly those that sell feminist, lesbian, and/​or overtly sexual literature—that the state is watching them and ready to censor.

Thus, “hate speech” laws are enforced against the certain groups they try to protect. We must resist solutions that embrace censorship, as hate speech laws fall hardest on those they aim to protect. Instead, we should favor the liberal solution, more speech:

Just as free speech always has been the strongest weapon to advance reform movements, including equal rights causes, censorship always has been the strongest weapon to thwart them. That general pattern applies to “hate speech” laws, even though they are adopted to advance equality (81).

I have previously written that no one knows how long legal immigrant workers will have to wait for permanent residency (i.e. green cards) in the United States, particularly from India where the wait times are the longest. But now U.S. Citizenship and Immigration Services (USCIS) has released the number of applicants for each category, so we can compute rough estimates of the number of years it will take people applying today to receive their green cards.

Table 1 provides the data. As of April 20, 2018, there were 632,219 Indian immigrants and their spouses and minor children waiting for green cards. The shortest wait is for the highest skilled category for EB‑1 immigrants with “extraordinary ability.” The extraordinary immigrants from India will have to wait “only” six years. EB‑3 immigrants—those with bachelor’s degrees—will have to wait about 17 years. The biggest backlog is for EB‑2 workers who have advanced degrees. At current rates of visa issuances, they will have to wait 151 years for a green card. Obviously, unless the law changes, they will have died or left by that point.

Table 1: Indian Immigrants Waiting for Green Cards (Approved Petitions for Alien Worker)*

Source: U.S. Citizenship and Immigration Services; Annual Visas from U.S. Department of State; *As of April 20, 2018 with Priority Date On or After May 2018 Department of State Visa Bulletin; Note: Spouses & children are based on USCIS’s estimate of the ratio of primary to dependent applicants

Immigration attorneys Adam Greenberg and William Stock pointed out to me two caveats regarding these calculations. First, because almost all EB‑2 workers qualify under EB‑3 since they have bachelor’s degrees, they—or their employers—can refile under the EB‑3 category. This means that the wait times between the categories could start to average out. Most immigrants in the EB‑2 backlog likely haven’t refiled in the EB‑3 line because the wait times for applicants who are receiving their green cards right now are basically the same for EB‑2 and EB‑3 (about a decade). There is the cost of refiling, so that would tend to discourage line jumping. However, averaging the two lines still yields a wait time of 58 years for both categories. Second, there could be some duplicate petitions filed for the same individuals by different companies. We have no way to quantify this phenomenon, but it is likely not too substantial because most employers withdraw the petition once their employee leaves. USCIS’s report also states that it excluded “revoked or reopened” petitions, so it did attempt to clean the data of the duplicates.

As Table 1 shows, the green card allocation is not based on the length of the backlog, so 69 percent of the backlog is in the EB‑2 category, but it received only 13 percent of the green cards issued in 2017. There are two reasons for this. First, each category is guaranteed a minimum of 40,040 green cards, so the allocation between categories does not adjust when one category has higher demand than the others. Second, EB‑2 is currently subject to the per-country limits—previously discussed here—that prevent Indian immigrants from receiving more than 7 percent of the green cards issued in the category.

For employment-based green cards, the per-country limit only applies in full force when the category is filled up, meaning that if some green cards would go to waste, Indian immigrants can receive above the per-country limit of 7 percent. For this reason, Indian immigrants received nearly 18 percent of the total green cards issued in the EB‑3 category in 2017. The last time the per-country limits fully applied in EB‑3 was in 2012. The demand in EB‑2 is so high from other countries right now, however, that EB‑2 immigrants from India received only about 7 percent of the total.

This inconsistency in the application of the per-country limit raises a third important caveat to the calculations above. If the per-country limits end up not applying fully for EB‑2 during some future years, they could receive their green cards before the next century. For example, if they received the same number of green cards as EB‑3 workers did in 2017, they would have to wait “only” 65 years, rather than 151 years as projected in Table 1 based on the number of issuances in 2017. On the other hand, if the per-country limits end up applying fully for EB‑3 workers after 2018, they could end up having to wait more than 40 years, rather than 17 years. 

It’s worth emphasizing that the per-country limits are still discriminating against EB‑3 Indians. Only once every other national who wants a green card in that category gets one do they get relief, so tens of thousands of immigrants from other countries are still bypassing them in line, even though Indians have waited longer. The absurd wait times for Indian immigrants highlights the importance of ending this pointless discrimination in the legal immigration system—which the Fairness for High Skilled Immigrants Act (H.R. 392)—but Congress shouldn’t just adopt a spread-the-pain policy either. It should increase the number of green cards issued as well.