Monday, November 23, 2015

Ferguson Effect: It’s not real, but urban murder spikes are.

Social science is the least exact of sciences.  And ideological advocacy is particularly worthy of skepticism.  It is a form of self-interested advocacy which, like financially self-interested advocacy, should be viewed with the traditional grain of salt.  In the current debate about police practices the police are of course interested in telling their side of the story.  And those who are police critics are subject to the same inclination to cherry pick data.

That's why we need rigorous databases, though even they are subject to debate.  Whether a policeman shot rather than defuse is not a determination that databases may help with.

For that the big picture may be more helpful.  Last week the London police reacted (overreacted) to what turned out to be just another stolen car.  "Armed police" stopped the vehicle.  Reminds us that the London police are not armed when they go out on ordinary patrol.  Like Ireland, Norway, Iceland, and New Zealand they carry guns only in special circumstances.

In the U.S. 1,000 people have been killed by police this year.  But America is heavily armed, so police may see threats to their lives even when there is none.  So databases only go so far in helping us decide what to do.  - gwc

Ferguson Effect: It’s not real, but urban murder spikes are.

Earlier this week, Manhattan Institute fellow Heather Mac Donald appeared before the Senate Judiciary Committee, at a hearing titled “The War on Police.” Mac Donald offered testimony about the so-called Ferguson Effect, a theory that says intense public scrutiny of law enforcement since the death of Michael Brown has made it harder for police officers to fight crime.

Leon Neyfakh is a Slate staff writer.

The theory, which has been promoted by conservative commentators and was recently endorsed by the director of the FBI, consists of two separate components. First, it notes that the past year has seen a sharp spike in crime in many large American cities. Second, it holds that the reason for this spike is that police officers have started shying away from aggressive police work because they are worried their actions will be caught on film and that they will be targeted by civil rights lawyers and cop-hating activists, regardless of whether their actions are legitimate or not.
Advocates of police reform have roundly dismissed talk of a Ferguson Effect as an attempt to kneecap the Black Lives Matter movement by blaming it for a national crime wave more imaginary than real. They were joined this week by Attorney General Loretta Lynch, who testified in the House that there is “no data” to suggest police are standing down, and Ronald Davis, a former police chief who served as the executive director of President Obama’s Task Force on 21st Century Policing, whosuggested to the Senate committee that the very idea of police officers abdicating their responsibilities out of fear was an insult to the profession.
The pushback against the Ferguson Effect theory should be applauded. While there is no doubt that the tense climate since Brown’s death has had an effect on police officers and how they do their jobs, the notion that protestors opposing police brutality are somehow responsible for rising crime rates is ludicrous. We must be clear, however, about what we’re saying when we argue there is no Ferguson Effect. Because homicide has become dramatically more common in a number of major American cities over the past year. And considering that the overwhelming majority of the people dying in these cities are black and Hispanic, those among us who profess to care about racial equality and the opportunities afforded to people in poor urban neighborhoods need to acknowledge that this is happening.  
The numbers are stark and frightening. In Milwaukee, more than 130 people have been killed so far this year, whereas the total for 2014 was 87. Washington, D.C., has seen 143 murders since January, up from a total of 105 for all of last year. St. Louis had recorded 168 murders as of Nov. 16, up from 121 during the first 10 months of 2014.
Baltimore, meanwhile, recently passed 300 murders for the year—a devastating milestone the city had not reached since 1999. According to the Baltimore Sun, the homicide rate in the city—which seems to have spiked in the immediate aftermath of Freddie Gray’s death at the hands of police in April—now stands at 48.97 per 100,000, higher than it’s ever been in the history of Baltimore.
It’s important not to misconstrue these numbers. They do not amount to a “national crime wave,” as Mac Donald and Sen. Ted Cruz claimed at this week’s Senate hearing. An authoritative new report from the Brennan Center for Justice confirms as much: Based on data from the 30 most populous U.S. cities, Brennan analysts found that the national crime rate is largely unchanged from last year, and the number of cities in their sample where the murder rate went up (14) is almost as high as the number of cities where it went down (11). “Murder rates vary widely from year to year,” the report cautions. “One year’s increase does not necessarily portend a coming wave of violent crime.” It could well turn out that the sudden jumps in the homicide rate on display in some of the cities analyzed in the Brennan report are the product of nothing more than statistical noise.
That’s little consolation, however, for the people living in the midst of the mounting violence. It’s understandable why partisans in the criminal justice reform movement are eager to point out why the spikes in urban violence are not the result of a Ferguson Effect. But scoring that political point risks minimizing the fact that violent crime really has skyrocketed in some cities and that life for the people who live there has become scarier and more fragile in ways that are unfathomable to most of us.

Saturday, November 21, 2015

Danger at the Ballpark, and in a Baseball Ticket’s Fine Print - The New York Times

Baseballs leave the bat of today's hitters at 100 mph.  There is no time to get out of the way on the third and first base lines.  And in today's carnivals of Diamond Vision mega screens, replays, and music fans are often distracted.

And courts today, having recovered from the faintly remembered pro-consumer era of the 1960's, are now dominated by thinking of what Paul Krugman calls the Very Serious People - who appreciate the owners concerns to reduce costs and win profits.  The result: virtual immunity from ballpark injuries. - gwc

Danger at the Ballpark, and in a Baseball Ticket’s Fine Print - The New York Times

by Joe Nocera

Near the end of 2012, feeling he had been left with no choice, Zlotnick filed a personal-injury lawsuit against the Yankees and Major League Baseball. It was not about the $25,000, which Zlotnick had the means to cover. His main goal, he told me, was to force the Yankees to change their umbrella policy — and for M.L.B. to start taking fan injuries seriously.
Thanks largely to that fine print I mentioned earlier, it is nearly impossible for an injured fan to win a lawsuit against the Yankees or the Mets.
“The bearer of the ticket assumes all risk and danger incidental to the sport of baseball,” the Yankees declare on the back on their tickets. The legal boilerplate then goes on to disclaim all liability if a fan is injured at Yankee Stadium. Zlotnick’s lawyer, Edward Steinberg, told me that New York courts had been “tough” in enforcing what’s known as the “assumption of risk” doctrine. (Some people call it the “baseball rule.”) Indeed, Steinberg, who is a personal-injury lawyer, said that he routinely turns away badly injured fans who want to sue, because the suits have so little chance of succeeding.
Keep reading

The Government's Petition for Certiorari in the DAPA case, iUnited States v. Texas //Martin Lederman // Balkinization

Balkinization: The Government's Petition for Certiorari in the DAPA case, iUnited States v. Texas 

by Marty Lederman

Here it is. More to follow soon, but these are the Questions Presented:
The Department of Homeland Security has long engaged in “a regular practice * * * known as ‘deferred action,’” in which the Secretary “exercis[es] [his] discretion” to forbear, “for humanitarian reasons or simply for [his] own convenience,” from removing particular aliens from the United States. Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 483-484 (1999). 

 On November 20, 2014, the Secretary issued a memorandum (Guidance) directing his subordinates to establish a process for considering deferred action for certain aliens who have lived in the United States for five years and either came here as children or already have children who are U.S. citizens or permanent residents.
The questions presented are:
1. Whether a State that voluntarily provides a subsidy to all aliens with deferred action has Article III standing and a justiciable cause of action under the Administrative Procedure Act (APA), 5 U.S.C. 500 et seq., to challenge the Guidance because it will lead to more aliens having deferred action.
2. Whether the Guidance is arbitrary and capricious or otherwise not in accordance with law.
3. Whether the Guidance was subject to the APA’s notice-and-comment procedures.

Thursday, November 19, 2015

American Medical Association calls for ban on drug advertising to consumers | Reuters

In the highly unlikely event Congress enacted such a ban, the Supreme Court would declare it unconstitutional - since they now see no practical distinction between commercial speech and political speech.  The First Amendment is now a powerful anti-regulatory tool in their hands. - gwc

U.S. doctor group calls for ban on drug advertising to consumers | Reuters

by Susan Kelly

The American Medical Association on Tuesday called for a ban on advertising prescription drugs and medical devices directly to consumers, saying the ads drive patients to demand expensive treatments over less costly ones that are also effective.

The influential doctors' group said the new policy reflects physicians' concerns that marketing spending on a proliferation of advertising is helping to drive up drug prices. The group voted at its annual meeting in Atlanta to support a ban.

"Direct-to-consumer advertising also inflates demand for new and more expensive drugs, even when those drugs may not be appropriate," AMA Board Chair-elect Patrice Harris said in a statement.

Read more at Reuters

Doctors Call for an End to Prescription Drug Ads | Adweek

During its brief period on the market Merck spent more money advertising Vioxx than Budweiser spent selling beer. If by some miracle such a measure got through Congress the "originalists" would be telling us the founding fathers believe that money talks and so the First Amendment bars limits on advertising. - gwc

Doctors Call for an End to Prescription Drug Ads | Adweek

The American Medical Association has called for an end to direct-to-consumer advertising of prescription drugs and medical devices.

The AMA, which represents about 250,000 physicians nationwide, reversed its previous stance on the issue following a vote at the group's annual meeting in Atlanta.

"Today's vote in support of an advertising ban reflects concerns among physicians about the negative impact of commercially-driven promotions, and the role that marketing costs play in fueling escalating drug prices," said AMA board chair-elect Patrice Harris in a statement. "Direct-to-consumer advertising also inflates demand for new and more expensive drugs, even when these drugs may not be appropriate."

The AMA's vote has no binding power. Such a ban would require congressional authorization. Still, the AMA maintains a powerful lobbying presence in Washington, and today's vote is seen as the first salvo in an effort to turn prescription drug ads into an election issue in 2016.

All told, drug companies spend about $4.5 billion annually in the U.S. advertising prescription remedies and implantable devices, according to Kantar Media. Spending has been on the rise, and the direct-to-consumer prescription drug category has become a major source of revenue for the TV and magazine industries.

The Pharmaceutical Research and Manufacturers of America, which represents drug companies, said scientifically accurate direct-to-consumer ads provide information to patients that help make them better choices. "Research shows that accurate information about disease and treatment options makes patients and doctors better partners," Tina Stow, a spokeswoman for PhRMA, told Bloomberg today.

Yale: The Power of Speech by David Cole | NYR Daily | The New York Review of Books

Yale: The Power of Speech by David Cole | NYR Daily | The New York Review of Books

by David Cole (Georgetown Law School)

***The First Amendment does not apply to a private institution like Yale University. But the same principles of free expression animate the doctrine of academic freedom. And while that entails requiring a certain level of decorum in classroom discussions, in order to make possible civil discourse among people who hold very different beliefs, it does not countenance punishing a professor (or student) for sending a public email questioning administration policy, much less for espousing bedrock principles of free expression. That Ms. Christakis was an associate master of the college, in charge of a residential community, does not diminish her right to express such opinions, and punishing the Christakises by removing them from their positions would send an unacceptable message of intolerance.

It is also a mistake to seek to suppress speech in the name of equality. Free speech and association are tools for the minority, whoever they are at a given moment—as the Yale students themselves have admirably demonstrated. The First Amendment empowers them to express their views, to dissent from majority policies, and to organize politically to advance their interests, just as, before them, it protected Martin Luther King Jr., Malcolm X, and other civil rights activists. The last thing a minority group should seek is the suppression of free expression.

Focusing on offensive speech also distracts from the more significant issues of racial injustice that persist more than sixty years after Brown v. Board of Education declared segregation unconstitutional—and that remain the Yale students’ principal concerns. African-Americans are disproportionately the victims of violence, both from the police and from their fellow citizens. They have far fewer economic and educational opportunities, and virtually the only American institutions in which they are over- rather than under-represented are prisons and the military. They have less wealth and shorter life expectancy than whites. And countless studies have shown that they are the victims of the implicit, often unconscious biases of doctors, employers, teachers, police, and probably everyone else they encounter. These are the pressing racial problems of our time—not Erika Christakis’s email. As media reactions illustrate there is a real risk that by going after the Christakises the students’ very legitimate complaints about much more serious problems will be drowned out.

Yale students are right to complain that their critics have failed to look beyond the viral video. If we want to understand the controversy at Yale, or at any of the many colleges that are experiencing similar protests, we must take seriously the deep and lasting wounds that continue to afflict the African-American community. We must demand, with the students, more diversity in faculty and staff, greater resources for minority students, and greater sensitivity to the challenges of building an integrated community of mutual respect. If President Salovey’s promises of significant change are realized, the students will have won—for the good of the whole university. But the struggle is not over. Responding to the challenges of diversity in a racially divided world is a full-time job. And continued activism will be needed to keep the administration to its promises. Demands to punish Erika Christakis because her genuine expression of opinion was deemed offensive undermine the cause. The students would do well to abandon that request and focus their and our attention on the more systemic problems of equal justice that continue to plague Yale, and the nation.

Tuesday, November 17, 2015

"Lawsuit Finance Contracts Are Loans, Colorado Supreme Court Rules" (CL&P Blog)

"Lawsuit Finance Contracts Are Loans, Colorado Supreme Court Rules" (CL&P Blog)
Forbes reports:
The Colorado Supreme Court has ruled that litigation-finance contracts — non-recourse loans to consumers that are repayable only if they win their case — are indeed loans under that state’s consumer finance laws, making it harder for high-interest lawsuit lenders to operate in the state.
The decision [yesterday] by Colorado’s highest court  upholds an appeals court decision against Oasis Legal Finance, believed to be the largest firm in the consumer end of the litigation-finance industry. It’s a loss for lawsuit lenders and supporters who say the industry helps equalize the bargaining power between injured consumers and insurance companies, who can use delays and other tactics to pressure plaintiffs into settling for less. But it’s a victory for the U.S. Chamber, which opposes lawsuit lending because it believes the loans both stimulate more litigation and inspire consumers to hold out for more money in order to repay loans that frequently have interest rates above 40% a year.
The full article, with a link to the court's opinion, is here.

Friday, November 13, 2015

Buyers Sue E-Cigarette Co. Over 'Harmful' Chemicals - Law360

Buyers Sue E-Cigarette Co. Over 'Harmful' Chemicals - Law360

by Diana Novak Jones

Law360, New York (November 12, 2015, 4:57 PM ET) -- A manufacturer of the nicotine liquid vaporized in e-cigarettes was slapped with a putative class action in California federal court Wednesday filed by three buyers who claim the company failed to disclose two potentially illness-causing chemicals in its products.

E-liquid maker Five Pawns Inc. violated California, New York and Indiana consumer protection laws when it advertised and sold e-liquid flavors that include diacetyl and acetyl propionyl, chemicals that studies have shown can cause scarring in lungs, emphysema and other respiratory problems, the suit claims.

Warnings posted on the Irvine, California-based company’s products and website don’t mention the presence of diacetyl and acetyl propionyl or explain their potential dangers, the buyers said.

“Defendant’s marketing campaign describes its e-liquids as if it were selling wine,” the buyers said in their suit. “Despite defendant’s marketing campaign that boasts its ‘top-notch ingredients’ that makes for a ‘high-end experience,’ defendant’s products are actually laden with harmful chemicals.”

The chemicals in Five Pawns’ products were first pointed out in 2009 after a British e-cigarette store commissioned a laboratory test and found that the e-liquid contained “the highest levels of [acetyl propionyl] that have ever been shown in a laboratory test of e-liquids,” according to the suit.

As a result of that testing, the Electronic Cigarette Trade Association of Canada told Canadian e-cigarette stores to stop selling Five Pawns’ products, the buyers claim.

Five Pawns has done its own testing of its products, which also showed the presence of diacetyl and acetyl propionyl, according to the suit.

Diacetyl and acetyl propionyl are flavorings that are also used in the manufacture of food products, according to the suit.

In a 2011 report, the National Institute for Occupational Safety and Health listed acceptable daily levels of diacetyl and acetyl propionyl exposure. In Five Pawns’ own testing, some of its products exceeded NIOSH’s safe daily amount of acetyl propionyl in a single gram, according to the suit.

According to the suit, when customers called Five Pawns to ask about the chemicals, representatives said either the products had no additives or only trace amounts.

In response to a letter from the buyers ahead of the suit’s filing, the company said it would improve customer service responses when customers call about the chemicals and would post quarterly testing of its products online, according to the suit.

The class action, which would include anyone who ever purchased a Five Pawns product, asks that the company stop its misleading marketing and seeks unspecified damages.

"Five Pawns denies any wrongdoing or liability," the company's attorney, John Bowerbank, told Law360. "Five Pawns will vigorously dispute the allegations and claims, and Five Pawns will respond accordingly."

Requests for comment from attorneys for the buyers went unanswered Thursday.

Five Pawns is represented by John Bowerbank of Garcia Rainey Blank & Bowerbank LLP.

The buyers are represented by Betsy Manifold, Rachele Rickert, Brittany Dejong, Janine Pollack, Michael Jaffe and Gloria Kui Melwani of Wolf Haldenstein Adler Freeman & Herz LLP.

The case is Greene et al v. Five Pawns, Inc., case no. 8:15-cv-01859 in the U.S. District Court for the Southern District of California.

--Editing by Kelly Duncan.

J&J Unit Settles Proposed Bellwether In Vaginal Mesh MDL - Law360

J&J Unit Settles Proposed Bellwether In Vaginal Mesh MDL - Law360

by Joe Van Acker

Law360, Los Angeles (November 12, 2015, 3:12 PM ET) -- A Johnson & Johnson unit accused of making defective pelvic mesh implants that cause painful infections has reached a settlement in a would-be bellwether trial that was scheduled to begin this month, according to a filing Wednesday in Georgia federal court.

Mentor Corp. reached a deal with Beryl Cole and Roger Gupton, whose complaint regarding the company’s ObTape sling was among six designated as bellwethers by U.S. District Judge Clay D. Land earlier this year and was slated for a two-week jury trial starting Nov. 30.

The terms of the agreement were not disclosed.

The couple’s complaint was one of hundreds against Mentor that were consolidated in multidistrict litigation. After being implanted with the ObTape device in 2004, Cole claimed in 2011 that, like many other recipients, she suffered infections, abscesses and scarring, requiring multiple surgeries.

One day before the U.S. Judicial Panel on Multidistrict Litigation consolidated the ObTape suits, the company settled 111 of them in one fell swoop, agreeing to establish a trust to manage and distribute funds agreed upon in 2014.

Mentor had settled another proposed bellwether case in July 2013 shortly before trial.

Following Wednesday’s settlement, just two of the proposed bellwether trials against Mentor remain in play. Judge Land previously granted the company’s motions for summary judgment in one case in August and two more in October.

Judge Land found that the patients in those three suits all knew, or should have known, that their medical problems were linked to the ObTape sling years before they sued, putting their claims beyond the statute of limitations.

Zimmer's Expert Takedown Poses Hurdles For Knee Patients - Law360

Zimmer's Expert Takedown Poses Hurdles For Knee Patients - Law360

by Sindu Sundhar

Law360, New York (November 12, 2015, 5:43 PM ET) -- Zimmer won the first bellwether trial in the federal multidistrict litigation over its NexGen knee implant series in part by successfully curbing its adversary's expert testimony on the adequacy of its warnings, which means the plaintiffs now must fight harder for such testimony in future trials or retool their strategy, attorneys say.

An Illinois federal jury rejected on Nov. 6 bellwether plaintiff Kathy Batty’s negligent design and failure to warn claims against Zimmer Inc. This outcome leaves the plaintiffs with some tough decisions about their strategy moving forward, attorneys say.

"The dynamics of the MDL have certainly changed now — the loss of expert testimony about the warnings was clearly very detrimental to the plaintiffs,” said Max Kennerly, of counsel at Tor Hoerman Law. “As they go forward in the MDL, they're going to have to find a way to make their case compelling."

Losing on a failure to warn claim can be a particularly tough blow for plaintiffs in a trial as such claims are generally considered to be their major battleground in the courtroom. While design defect claims can be harder to prove to a jury, since they are more technical, plaintiffs can count on failure to warn claims as a way to appeal more easily to a layperson's sense of fairness, attorneys say.

"With design defect, everything you're going to present there is complicated medical testimony about how medical devices are designed and should be designed, as compared to the cleaner, simpler claim that the company didn't tell the doctor about the real risks of the product, which is easier to prove in front of jury," Kennerly said.

"Legally, a failure to warn claim is also less susceptible to dispositive motions like summary judgments, because of the standards courts apply, and in the end, your jury is given a wide berth to decide the facts of what is an adequate warning," he added.

The court presiding over the case had previously rejected expert testimony submitted by Batty on whether there were adequate warnings on the NexGen devices that allegedly tend to loosen, which can impair flexibility and cause pain in patients.