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In Response to COVID-19, the Oklahoma Supreme Court Claims Power to “Suspend” Valid Laws

I have referred often to the Oklahoma Supreme Court’s “lawmaking” or to justices acting like “legislators in black robes” as rhetorical devices intended to illustrate a point about judicial activism. I never imagined the Court would go so far as to actually begin legislating. With its latest actions, however, it seems the Court views the exigencies created by our current public health woes as a greenlight to literally change the law in Oklahoma.
On Friday of last week, the Oklahoma Supreme Court issued (and the Court of Criminal Appeals signed off on) an “Emergency Joint Order” declaring that “all deadlines and procedures whether prescribed by statute, rule or order in any civil, juvenile or criminal case, shall be suspended through May 15, 2020” due to COVID-19 (emphasis added). The Court made this suspension specifically applicable to statutes of limitation in all civil cases. The Court had, on March 16, issued a similar order suspending deadlines for 30 days.
These Emergency Orders w…

A Cure Withheld: Education Establishment Kneecapping Distance Learning Already in Place

“We have the cure. We know it works. You’ve used it before. But you’re not allowed to use it now.”
Imagine if your government - federal, state, or local - said those words to you regarding the corona virus. You would be justifiably outraged. If you could access the cure, you would probably defy the ban on its use.
Two weeks ago my wife received an email from my step-daughter’s school. Among the expected notices that in-school instruction would be canceled for a least a few weeks due to corona virus, there was a nasty surprise. “Neither on-site nor virtual [i.e., remote, online and with no person-to-person contact] instruction can occur during the state's window of school closures.” (Emphasis added.) Note that this decision was made by the state Board of Education, not by Epic, the statewide virtual charter school we have chosen.
You see, when we moved to Oklahoma, my wife and I chose Epic because they not only seemed like they would do a better job teaching our kid (so far, in my opi…

Smart People in Charge Screwing Up: Panic over COVID-19

Could the economic shutdown cure for coronavirus be worse than the disease? It appears more likely every day.
As an undergraduate at Texas A&M, I was required to read an essay by Buckminster Fuller, inventor of the geodesic dome and a bona fide genius. I recall Fuller complaining that we hadn’t built railroad tracks with stainless steel, since it doesn’t rust. In commenting on the piece, I pointed out that stainless steel was costly compared to regular steel and Fuller failed to recognize this. It’s more cost effective to use regular steel tracks, which wear out long before they rust away, than to use stainless, despite the likelihood that stainless would wear longer.
We economists point out the reality that there are always costs when choices are made (i.e., scarcity always exists, thus the “dismal science” moniker). Costs might not always be easy to identify, but one thing is absolutely certain, failure to account for the fact that actions and choices always have consequences, pos…

Breaking the ABA’s Law School Cartel: A Proposal to Make Oklahoma Top-Ten in Innovative Lawyer Education

Would we grant Devon Energy a government-enforced veto over whether its competitors should be issued drilling permits? Would we think it acceptable for the government to require new drug applicants to first obtain approval from Pfizer or Johnson & Johnson before applying for FDA approval? Of course not. Generally speaking, we are not in favor of foxes guarding hen houses, and our laws tend to reflect that instinct.
Nevertheless, when it comes to deciding who can and cannot become a lawyer, nearly all states (including Oklahoma) have delegated the design of their hen house security plan to the fox’s self-interested trade association, the American Bar Association (ABA). This is the argument of my policy analysis released today, Breaking the ABA’s Law School Cartel: A Proposal to Make Oklahoma Top-Ten in Innovative Lawyer Education.
The ABA, a private trade association for lawyers, has a government-enforced monopoly over legal education as the only approved accreditor of law schools in…

1889 Institute's Statement Regarding School Closures

The 1889 Institute, an Oklahoma think tank, has released the following statement regarding Joy Hofmeister’s proposal to keep schools closed for the remainder of the school year.
We at the 1889 Institute consider Joy Hofmeister’s proposal to close Oklahoma’s schools for the rest of the school year a gross overreaction to the coronavirus situation. Even in the best of times and circumstances, suddenly shifting every student in the state from traditional classrooms to online distance learning will have negative educational consequences. This in addition to the economic burden on two-earner families forced to completely reorder their lives with schools closed.
We believe many of our leaders have overreacted to worst-case scenarios presented by well-intended health experts with no training or sense of proportion in weighing the collateral damage of shutting down our economy versus targeting resources to protect the truly vulnerable. We say reopen the schools and stop the madness. Only truly …

Can Government Force You to Close Your Business?

1889 Institute takes no position on whether any or all of these measures are warranted or necessary, or whether their economic fallout would inflict more human suffering than they prevent. We are simply evaluating whether they are legal.
With the unprecedented (in the last 100 years at least) reaction surrounding the outbreak of Covid-19, questions that few living legal scholars have considered are suddenly relevant.
Can a quarantine be ordered?Can a mass quarantine, lockdown, or “cordon sanitaire” be ordered?Can businesses be ordered to change their behavior?Can businesses be ordered to close?Can state governments order these measures?Can local governments order these measures?
My legal brief addresses these issues from a statutory point of view; it is clear that state law gives the governor and mayors broad authority in a state of emergency. They must, of course, do so in a neutral way that they reasonably believe will help prevent the spread of infection. They cannot order quarantine …

On Coronavirus and American Exceptionalism

Most of us have no idea whether to fear the coming coronavirus pandemic or to scoff at what seems to be a panic, complete with toilet paper buying sprees. I find myself mostly in the latter camp, due not to some great scientific knowledge, but as a matter of general disposition. But I’m also a father of young children, so a touch of protective instinct kicks in whenever a big outside force that could harm my family rears its head.
With much I don’t know, there is something I do know: If forced to weather a pandemic, I’d rather do so in the United States than any other country on earth.
Watching news coverage, I cannot help but notice a subtle message underlying the words of far too many in the political commentariat. Many seem to speak about China’s management of the outbreak with envy. Their analysis is that because we are a big, unruly, open society, we cannot hope to make people to do what is necessary to stem the spread. The old “China for a Day” fantasy of Thomas Friedman is appare…

Protecting Unlicensed Occupations from Government-Sanctioned Cartels

Great care must be taken in repealing occupational licensing laws. No, not care in which licensing regimes are repealed or how quickly we are rid of them. They can all go, post haste (yes, that includes doctors and lawyers). Licensing hurts the economy to the tune of $200 Billion each year. A practitioner in a licensed field can expect to charge an unearned premium of 10-12 percent over his unlicensed peers. And licensing has shown almost no benefits in terms of improving public safety. The small benefits - such as a shorthand indicating which practitioners have received a minimum amount of training - could be better achieved through private certification without the economic harms visited by licensing regimes.
No, the care that must be taken is in the unintended consequences of repealing individual licenses. There are times when groups of practitioners will ask the government to regulate them not because they want those sweet monopoly profits (though surely they realize such a fringe…