Thursday, March 31, 2016

After big verdicts: Has Johnson & Johnson lost its way? // NJ Law Journal

Image result for johnson and johnson
After big verdicts: Has Johnson & Johnson lost its way? //NJ Law Journal
by Charles Toutant and Max Mitchell // NJ Law Journal

Plaintiffs lawyers haven been winning a steady stream of big products liability verdicts against Johnson & Johnson recently, and some have suggested the company's size makes it a bigger target for litigation—and also more willing to take cases to trial.

All the litigation hasn't kept Wall Street from taking a liking to Johnson & Johnson—several brokerages upgraded their ratings on the company's stock in recent weeks, including Goldman Sachs, which changed its prognosis for Johnson & Johnson to "neutral," after rating it "sell" for 14 months. But the heavy burden of litigation facing the company may have some questioning the company's direction and management.

On March 17, a federal jury in Dallas ordered the company to pay $502 million to five plaintiffs who claimed the company's Pinnacle artificial hips failed prematurely. And on Feb. 22, a state jury in Missouri returned a $72 million verdict in the case of a woman whose death from ovarian cancer was linked to long-term use of Johnson & Johnson's talcum powder products. The company is expected to appeal both verdicts.

On another front, Johnson & Johnson's Janssen Pharmaceuticals has been hit with plaintiff verdicts in three of the four cases tried before Philadelphia juries in the past year concerning a tendency by antipsychotic drug Risperdal to cause male users to develop breasts. The company has seen verdicts of $500,000, $2.5 million and $1.75 million in those cases. Also in Philadelphia, the company was hit with verdicts of $12.5 million in January and $13.5 million in February over its pelvic mesh products. And in the fall, the company faces the first trial in multidistrict litigation in Philadelphia of 217 suits claiming that Tylenol causes liver damage.

In addition, on March 29, the New Jersey Appellate Division upheld an $11.1 million verdict against Johnson & Johnson subsidiary Ethicon Inc. in the first bellwether pelvic mesh trial in New Jersey state court.

Erik Gordon, who studies drug companies as an assistant professor at the University of Michigan's Ross School of Business, said he sees a departure from the vow by Johnson & Johnson's founders to put patients' interests ahead of those of stockholders.

"J&J seems to have changed from a company that lived its famous credo of putting patients first to a company that puts 'hit the sales numbers' first and cites the credo, with feeling, when it is in a public relations mess related to allegedly defective products," Gordon said.

The root cause of the verdicts lies in the conduct of Johnson & Johnson, said Shanin Specter of Kline & Specter in Philadelphia, who recently tried two pelvic mesh cases against the company to verdict for a total of $26 million in jury awards.

"Johnson & Johnson is being told by juries that they have acted negligently and recklessly more than any other company in the United States," Specter said. "Their internal documents demonstrate that they are a company that has lost its way, and they are putting sales over safety."
Read more:

Wednesday, March 30, 2016

Who Are the Angriest Republicans? - The New York Times

Typically provocative take by Thomas Edsall.   The GOP's exploitation Of white resentment has always been calculated to serve their desire to cut social welfare spending.  The envy they encouraged (why should he get more than me), and their contempt for "elites" was never genuine - because the GOP has been at bottom, a pro-business party which was hostile to labor..  But it was strategically productive.   Now the contempt for working class people ad their struggles is being expressed in florid ways as the appalling upsurge in support for Donald Trump demonstrates that their base only wants to cut benefits for the "undeserving".  Trump's resentful celebrants are not interested in "entitlment reform" when it threatens to  reach Social Security and Medicare.  It is ideology, and old fashoned prejudice that keeps Trump's white working class supporters from going back to the Democrats - where they belong if self interest were their guide. - gwc
Who Are the Angriest Republicans? - The New York Times
by Thomas Edsall

Conservatives who once derided upscale liberals as latte-sipping losers now burst with contempt for the lower-income followers of Donald J. Trump.
These blue-collar white Republicans, a mainstay of the conservative coalition for decades, are now vilified by their former right-wing allies as a “non-Christian” force “in thrall to a vicious, selfish culture,” corrupted by the same “sense of entitlement” that Democratic minorities were formerly accused of.
Kevin Williamson, a columnist for National Review, initiated the most recent escalation of this particular Republican-against-Republican power struggle. In a March 13 essay, “The Father-Führer,” Williamson portrays Trump’s struggling white supporters as relying on theirimaginary victimhood when, in fact, he contends:
They failed themselves. If you spend time in hardscrabble, white upstate New York, or eastern Kentucky, or my own native West Texas, and you take an honest look at the welfare dependency, the drug and alcohol addiction, the family anarchy — which is to say, the whelping of human children with all the respect and wisdom of a stray dog— you will come to an awful realization. It wasn’t Beijing. It wasn’t even Washington, as bad as Washington can be.
Less well-off white voters have only themselves to blame, Williamson continues:
It wasn’t immigrants from Mexico, excessive and problematic as our current immigration levels are. It wasn’t any of that. Nothing happened to them. There wasn’t some awful disaster. There wasn’t a war or a famine or a plague or a foreign occupation. Even the economic changes of the past few decades do very little to explain the dysfunction and negligence — and the incomprehensible malice — of poor white America.

GM Wins Defense Verdict In 2nd Ignition-Switch Trial - Law360

BREAKING: GM Wins Defense Verdict In 2nd Ignition-Switch Trial - Law360
by Cara Salvatore

Law360, New York (March 30, 2016, 11:23 AM ET) -- 
General Motors on Wednesday won the second bellwether trial in the continuing fight over its defective ignition switches, as a New York federal jury found that GM cars were unreasonably dangerous but did not find that plaintiffs' injuries were caused by their car, a Saturn roadster.

The trial, selected by GM as a test of some of the weaker claims in a pool of hundreds of lawsuits, had been closely watched after a first bellwether disintegrated when the plaintiff was accused of lying. And this one wasn't without its own drama: Over its two-plus weeks, two separate jurors were dismissed for sleeping.

The verdict came only after the remaining eight sent a flurry of notes indicating confusion with the flow of the complicated verdict form.

Plaintiff Dionne Spain, the owner of a blue 2007 Saturn Sky, blamed GM's now-infamous ignition-switch design defect for her crash on the Crescent City Connection bridge in New Orleans in January 2014 as she and passenger Lawrence Barthelemy drove across it to go to a poetry reading.

Police and GM's reconstructionists blamed black ice; Spain and Barthelemy said the Sky suffered from the same ignition-switch defect that has caused scores of deaths. A small metal plunger that was supposed to keep the ignition slotted into the “Run” position was too weak and could be turned off by inertia from road bumps or driving maneuvers or by jostles from a driver's knee, an industry-rocking report called the Valukas report found amid GM's 2014 recalls.

On any occasion when the weak switch flipped backward to "Accessory," the engine would cut out, airbags would be disabled, and power steering and power brake assist would stop, as would, of course, the ability to accelerate to keep up with traffic.

GM presented a mountain of medical records during the trial suggesting that Spain and Barthelemy did not sustain the injuries they claimed to have from the crash. Both suffered back pain before and after the crash, but GM presented many records suggesting that the back pain after the crash was not purported to have stemmed from it. Spain was a medical receptionist, Barthelemy a barge washing supervisor.

U.S. District Judge Jesse Furman had dismissed a handful of claims shortly before the trial, and dismissed another after the defense rested its case.

Lending to Clients, Shoddy Bookkeeping Get Lawyer Censured | New Jersey Law Journal

Lending to Clients, Shoddy Bookkeeping Get Lawyer Censured | New Jersey Law Journal
by David Bialanella

Whether done out of kindness or not, advancing money to cash-strapped clients remains a no-no, and it earned one New Jersey lawyer a censure when he acknowledged doing it after already having been disciplined for it.
The state Supreme Court on March 29 issued a censure to Cherry Hill solo Barry Beran, who had consented to that measure of punishment with the Disciplinary Review Board (DRB).
Complicating matters, Beran apparently failed to keep close tabs on what he'd lent versus how much he owed once a judgment came in, according to the DRB's Feb. 25 memorializing the agreement.

The letter said Beran advanced $18,849 in personal funds to three clients, and lent other sums to the widow of and heirs to a man who died in an accident and whose estate was the subject of a wrongful death case handled by Beran.

Beran also made payments to the heirs' creditors, according to the letter.

The wrongful death matter settled for $115,000, but the ensuing disbursements were made over five months and not done in the proper amounts, the letter stated.

"As a result of respondent's deficient records, he was unable to substantiate the total amount of advances he had made against the proceeds of the lawsuit," the DRB said. "He thus, admitted that, because he had failed to maintain adequate records of the advanced funds, he negligently misappropriated a portion of them by failing to distribute the correct amount to [the clients]."

According to the letter, Beran also admitted to failing to maintain client ledger cards, leading to "inactive balances" in his trust account that weren't detected because he did not perform monthly account reconciliations.

Read more:

Monday, March 28, 2016

Sen. Hatch's Op-Ed: `Let Voters Decide' dodges responsibility for choosing a Scalia Successor- The New York Times

How one frames an argument determines its outcome.  In a Times Op-Ed Utah Senator Orrin Hatch frames the issue of Merrick Garland's nomination in a patently distorted way.
First - he completely ignores the nominee - Chief Judge Merrick Garland, whose integrity  on the bench Hatch himself has said is unassailable. Nor does he mention that he voted for Garland in 1997.
Second he pivots to President Obama as the object of attack.  The President, says the Senator, has "contempt for constitutional principles".  To wit that "empathy...towards particular groups" should drive judicial decision-making.  Obama, introducing Sonia Sotomayor, emphasized "empathy" as a judicial virtue.  And it surely is: that justice (meaning adherence to rule) should be tempered by mercy (empathy) is surely a bedrock element of judiciousness - that virtue long celebrated.  And one for which Merrick Garland is highly respected.
Third, Hatch distorts the issues - framing it as qualifications (Roberts, Alito both of whom Obama opposed as a Senator)  vs. "activism" by Justices Kagan and Sotomayor (both of whom, like Garland have the now usual Harvard/Yale credentials).
Supreme Court Justices have never been chosen solely for their competence.  Everyone knows - especially Senator Hatch - that the words of laws and judges are often malleable (corporate campaign donations are "speech"; "equal protection of the law" extends to or does not extend to homosexuals).  Justice Scalia whom Hatch celebrates loudly voted No in every gay rights case that came before him.  That is policy making - not following the law's literal command.

So the only real issue regarding the Garland nomination is whether the policy views of the nominee are ones that the Senator finds acceptable or unacceptable. It is on those issues that Orrin Hatch has a duty to account; and to explain his vote.  Instead he adheres to the partisan refusal to meet the candidate, hold hearings, or vote on the nomination.  Leaving the issue to the electorate is a dodge.  It deprives the public of a debate on what is surely an important nomination - because it would replace a vote on the far right to one at the center,  And everyone knows that the location of the fulcrum determines outcomes.
- gwc

Let Voters Decide the Court’s Future - The New York Times
by Orrin G. Hatch

Throughout his time in office, President Obama has demonstrated contempt for the constitutional principles that Justice Scalia sought to protect. Mr. Obama has proudly suggested that “empathy” for particular people and groups should motivate a judge’s decisions — a belief squarely at odds with the judicial oath to “administer justice without respect to persons.” The president has appointed two Supreme Court justices and many lower court judges who have embraced the sort of judicial activism Justice Scalia spent his career seeking to curtail.
As a senator, Mr. Obama even opposed the nominations of Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. — two eminently qualified mainstream jurists — because they expressed fidelity to the law as written, rather than a commitment to progressive policy outcomes.

Sunday, March 27, 2016

On C.T.E. and Athletes, Science Remains in Its Infancy - The New York Times

On C.T.E. and Athletes, Science Remains in Its Infancy - The New York Times
by Benedict Carey
BEDFORD, Mass. — In a small room banked by refrigerators of preserved brains, a pathologist held a specimen up to the light in frank admiration. Then it was time to cut — once in half and then a thick slice from the back, the tissue dense and gray-pink, teeming with folds and swirls.
It was the brain of a professional running back.
“There,” said Dr. Ann McKee, the chief of neuropathology at the V.A. Boston Healthcare System and a professor of neurology and pathology at Boston University’s medical school, pointing to a key area that had an abnormal separation. “That’s one thing we look for right away.”
Over the past several years, Dr. McKee’s lab, housed in a pair of two-story brick buildings in suburban Boston, has repeatedly made headlines by revealing that deceased athletes, including at least 90 former N.F.L. players, were found to have had a degenerative brain disease called chronic traumatic encephalopathy, or C.T.E., that is believed to cause debilitating memory and mood problems. This month, after years of denying or playing down a connection, a top N.F.L. official acknowledged at a hearing in Washington that playing football and having C.T.E. were “certainly” linked.
His statement effectively ended a very public dispute over whether head blows sustained while playing football are associated with the disorder. But it will not resolve a quieter debate among scientists about how much risk each football player has of developing it, or answer questions about why some players seem far more vulnerable to it than others.

Saturday, March 26, 2016

Meet Ken Feinberg, the Master of Disasters | | Observer

Wherein I get some "ink". - gwc
Meet Ken Feinberg - the Master of Disasters //NY Observer
“It’s certainly a triumph of branding. There’s no doubt about that,” said George Conk, a law professor at Fordham University and an expert on torts law. “He’s a dominant presence.”
"His real innovation may have been realizing that if you want a Resolution, you have to make sure everyone participates in a claims program. This means “you’ve got to offer just about everybody something, including people who have weak claims,” said Mr. Conk, the Fordham University professor. “You can’t pay fraudulent claims, but you can pay weak claims."

Friday, March 25, 2016

Gunned Down - The American Interest

Gunned Down - The American Interest
Gunned Down
The NRA has spun a story of the Second Amendment’s origins that has nothing to do with its real ones.

National Hero- Easter 1916 - Maria Farrell — Crooked Timber

The great grand-daughter of Eoin MacNeill - leader of the Irish Volunteers - who tried to stop the 1916 Easter Rebellion looks back.   
National Hero — Crooked Timber
by Maria Farrell
This weekend we celebrate the one-hundredth anniversary of the Easter 1916 Rising, the rebellion that gave the Republic of Ireland its foundation myth. As an origin story, Easter 1916 can be hard to live with. Its egalitarian and revolutionary ideals were quickly brushed aside by a deeply conservative political class intent on pushing anyone feminist or left-wing out of Irish politics. And the bumps and inconsistencies in how the leaders of the rising behaved were ironed out till the whole thing looks like one of those over-embroidered altar cloths with starched creases in all the wrong places. The whole enterprise fell victim, for many decades, to a pietistic impulse to canonise the leaders of armed rebellion, making them seem weirdly inhuman. But they were never distantly inhuman to me, despite what I learnt in school. When I first came across Benjamin’s now over-used expression, ‘rubbing history against the grain’, I knew exactly what he meant.
In 1916, my great-grand father, Eoin MacNeill, was the head of a dissident army, the Irish Volunteers. At its height, before many left and volunteered to fight in World War I, the Irish Volunteers numbered about eighty thousand men. (To put it in context, that’s within a few thousand of the British Army’s post-austerity total, today.) Eoin MacNeill was one of the most unlikely rebel leaders you can imagine. He was a scholarship boy from a small town in Antrim. He devoured Latin, history and Ancient Greek, and as a scholar opened up new areas of research in Irish language and laws. With Douglas Hyde, he co-founded the Gaelic League, a countrywide movement that was part of Europe’s late nineteenth century surge in cultural nationalism and also a great way to meet young people of the opposite sex. In pictures, MacNeill looks pale and fine-boned. He wears the fastidious little glasses everyone did who spent most nights reading in poor light. He is as far from a soldier as anyone can be. [click to continue…]

What Difference Would It Make If Liberals Controlled the Supreme Court? -

 What Difference Would It Make If Liberals Controlled the Supreme Court? -

by Steve Shiffrin (Cornell Law School)

With the passing of Justice Scalia, and with the nomination of a centrist judge who probably will not be confirmed, we should ask what difference it would make a newly elected Democratic President appointed a liberal judge creating a liberal majority on the Court. Most recognize that the general trend of decisions by the Court in which Justice Scalia played an important role would be quite different than they are now. 

That Court undermined health, safety, and environmental regulations and otherwise acted in ways celebrated by the Chamber of Commerce. It overturned the Voting Rights Act, and it upheld state regulations designed to make it more difficult for Democrats to vote. It used the First Amendment to overturn campaign finance regulations and was on the verge of using the same amendment to weaken unions. The Court smothered dissent: upholding bureaucrats who sought to censor the speech of public employees, students, and prisoners. The Court weakened affirmative action programs and upheld attempts to burden the process of securing an abortion. The Court supported gun rights in the home and to some extent outside the home. And it gave stingy interpretations of our Fourth, Fifth, and Sixth Amendment rights.

I would expect a liberal Court to reverse these trends, overruling cases or reading them narrowly. But there is more. It takes four justices to vote to hear a case. Liberal Justices on a conservative Court will not vote to hear a case that would permit the conservatives to create a bad precedent. If the liberals controlled the Court, the agenda of the Court would look very different.

Thursday, March 24, 2016

John McCain: Salute to a Communist - The New York Times

John McCain: Salute to a Communist - The New York Times
AN interesting obituary appeared in The New York Times recently, though the death of its subject last month was largely unnoticed beyond his family and friends.
That’s not surprising. Delmer Berg wasn’t a celebrity. He wasn’t someone with great wealth or influence. He had never held public office. He was a Californian. He worked as a farmhand and stonemason. He did some union organizing. He was vice president of his local N.A.A.C.P. chapter. He protested against the Vietnam War and nuclear weapons. He joined the United States Communist Party in 1943, and, according to The Times, he remained an “unreconstructed Communist” for the rest of his life. He was 100.
He was also the last known living veteran of the Abraham Lincoln Brigade.
Mr. Berg went to Spain when he was a very young man. He fought in some of the biggest and most consequential battles of the war. He sustained wounds. He watched friends die. He knew he had ransomed his life to a lost cause, for a people who were strangers to him, but to whom he felt an obligation, and he did not quit on them. Then he came home, started a cement and stonemasonry business and fought for the things he believed in for the rest of his long life.
I don’t believe in most of the things that Mr. Berg did, except this. I believe, as Donne wrote, “no man is an island, entire of itself.” He is “part of the main.” And I believe “any man’s death diminishes me, because I am involved in mankind.”
So was Mr. Berg. He didn’t need to know for whom the bell tolls. He knew it tolled for him. And I salute him. Rest in peace.

In N.F.L., Deeply Flawed Concussion Research and Ties to Big Tobacco - The New York Times

In a meticulously researched story by the New York Times  the National Footbal League is seen to have engaged in shallow and misleading concussion research going back to 1994.  So flawed is the data that even concussions to quarterback stars like Steve Young (49'rs) and Troy Aikman (Cowboys) were not included.  And their are links to the notorious Tobacco Institute and its secretive "Committee of Counsel".  That was a device to shield damaging evidence via attorney client privilege.  - gwc
In N.F.L., Deeply Flawed Concussion Research and Ties to Big Tobacco - The New York Times

The National Football League was on the clock.
With several of its marquee players retiring early after a cascade of frightening concussions, the league formed a committee in 1994 that would ultimately issue a succession of research papers playing down the danger of head injuries. Amid criticism of the committee’s work, physicians brought in later to continue the research said the papers had relied on faulty analysis.
Now, an investigation by The New York Times has found that the N.F.L.’s concussion research was far more flawed than previously known.
For the last 13 years, the N.F.L. has stood by the research, which, the papers stated, was based on a full accounting of all concussions diagnosed by team physicians from 1996 through 2001. But confidential data obtained by The Times shows that more than 100 diagnosed concussions were omitted from the studies — including some severe injuries to stars like quarterbacks Steve Young and Troy Aikman. The committee then calculated the rates of concussions using the incomplete data, making them appear less frequent than they actually were.
After The Times asked the league about the missing diagnosed cases — more than 10 percent of the total — officials acknowledged that “the clubs were not required to submit their data and not every club did.” That should have been made clearer, the league said in a statement, adding that the missing cases were not part of an attempt “to alter or suppress the rate of concussions.”

One member of the concussion committee, Dr. Joseph Waeckerle, said he was unaware of the omissions. But he added: “If somebody made a human error or somebody assumed the data was absolutely correct and didn’t question it, well, we screwed up. If we found it wasn’t accurate and still used it, that’s not a screw-up; that’s a lie.”

Biden To Use His Own Record To Bash GOP Senate On SCOTUS Blockade //TPM

Biden To Use His Own Record To Bash GOP Senate On SCOTUS Blockade// Talking Points Memo

By Tierney Sneed March 24, 2016 

The latest play by President Obama’s administration to pressure Republicans to consider Supreme Court nominee Merrick Garland is a speech Vice President Joe Biden will give at Georgetown University Law School Thursday afternoon. Biden will use his own record as a member of Senate Judiciary Committee -- which typically leads the Senate's confirmation process -- to argue the Senate should hold hearings and a vote for Garland, according to excerpts of the speech provided to TPM.

“In my time as the ranking Democrat or as Chairman of the Senate Judiciary Committee, I was responsible for eight nominees to the Supreme Court—some I supported, others I voted against,” Biden will say. “And in all that time, every nominee was greeted by committee members. Every nominee got a committee hearing. Every nominee got out of the committee to the Senate floor. And every nominee, including Justice Kennedy—in an election year— got an up or down vote by the Senate. Not much of the time. Not most of the time. Every single time.”

Biden will also argue that a vacancy on the court left for months on end while Republicans refuse to consider any nominee is harmful for the country.

“The Framers designed our system to give one Supreme Court the responsibility of resolving conflicts in the lower courts,” BIden will say. “If those conflicts are allowed to stand, we end up with a patchwork Constitution inconsistent with equal justice and the rule of law.”

Biden will go on to argue that, “The meaning and extent of your federal constitutional rights ...all could depend on where you happen to live.”

Wednesday, March 23, 2016

Bush Would Have Nominated Garland - The New York Times

Bush Would Have Nominated Garland - The New York Times
by Richard W. Painter (former White House Ethics Counsel - (2005-2007)
The best option in this situation is for the president to nominate a consensus candidate. The president should choose someone like Justice Anthony M. Kennedy, whom President Reagan later nominated.
Judge Garland is just the kind of candidate we would have advised President Bush to nominate if he had been in this situation. A proven moderate, he has enjoyed widespread Republican support in the past. As a former prosecutor, he is often sympathetic to the prosecution in criminal cases. He has aggressively and thoroughly prosecuted terrorists. Senator Orrin G. Hatch, Republican of Utah, who is an expert on the Constitution as well as the confirmation process, admires him. Judge Garland is exactly the type of person who might have been chosen by the Bush administration if a Supreme Court nomination had been submitted to a Democratic-controlled Senate. Like the Kennedy nomination in 1987, a Garland nomination is a good way for a president to get the job done.

Lead Contamination in Flint — An Abject Failure to Protect Public Health — NEJM

Lead Contamination in Flint — An Abject Failure to Protect Public Health — NEJM:
Perspective from The New England Journal of Medicine
by David C. Bellinger, PhD (Harvard Medical School)

We have the knowledge required to redress this social crime. We know where the lead is, how people are exposed, and how it damages health. What we lack is the political will to do what should be done....

The dangers of lead exposure have been recognized for millennia. In the first century a.d., Dioscorides observed in his De Materia Medica that “lead makes the mind give way.” The first industrial hygiene act passed in the colonies, in 1723, prohibited the use of lead in the apparatus used to distill rum, because “the strong liquors and spirits that are distilld through leaden heads or pipes are judged on good grounds to be unwholsom and hurtful.” More recently, large amounts of lead were used to boost the octane rating of gasoline and improve the performance of paint. One would be challenged to design a better strategy for maximizing population exposure to a poison than to have it emitted by a ubiquitous mobile source and to line the surfaces of dwellings with it.

The dramatic reduction over the past 40 years in blood lead levels in the U.S. population is rightly regarded as one of the cardinal public health success stories. It was achieved largely by phasing out lead as a gasoline additive and restricting the amount of lead permitted in paint. At the same time, because of research opportunities created by reductions in population exposures, the consensus view on how much lead is “too much” has also evolved. It is now established that there is no safe level of lead, particularly for children. The reference blood lead concentration for children set by the Centers for Disease Control and Prevention, 5 μg per deciliter, is meaningful only for risk stratification.

Water doesn’t receive as much attention as paint as a route of lead exposure, but the use of lead in water-distribution systems goes back to the Romans. Indeed, our word “plumbing” derives from the Latin for lead, and lead poisoning is often called “plumbism.” The recent episode in Flint, Michigan, has brought the issue of lead in water into the public eye.

In 2014, solely as a cost-saving measure, the city began taking its water from the Flint River rather than Lake Huron. The corrosion-control treatments required by the Environmental Protection Agency’s Lead and Copper Rule1were, for some reason, discontinued. To make matters worse, the addition of ferric chloride to reduce the formation of trihalomethanes from organic matter increased the corrosivity of the Flint River water. The water reaching consumers was therefore 19 times as corrosive as it had been when the source was Lake Huron. The more corrosive water is, the more readily it can dissolve metals such as lead. So the lead concentration in Flint’s water began to rise. In six of nine city wards, the water in 20 to 32% of the homes had a lead concentration above 15 μg per liter, a concentration that triggers remedial action under the Lead and Copper Rule. The 90th percentile was 25 μg per liter, and in some samples the concentration exceeded 1000 μg per liter (


The Long Game//response to John Judis on Belgium, etc,

The European terror problem is a failure of assimilation morethan a middle east problem in this reply to John Judis.  - gwc
The Long Game
TPM Reader RM responds to John Judis:
I disagree with John Judis’ analysis regarding the terrorist attack in Europe. I think he conflates issues in the Middle East with those of the Muslim community living abroad. I don’t think the two are linked as closely as he assumes. I also think he conflates terrorism (a tactic) with the ideology of militant Islamic fundamentalism....
Keep Reading 

Tuesday, March 22, 2016

Florida Bar Board of Governors considers advertising rule amendments on use of “expert” and “specialist” and approves rule regarding faxes, telegrams and online chatrooms | Lawyer Ethics Alert Blogs

Florida Bar Board of Governors considers advertising rule amendments on use of “expert” and “specialist” and approves rule regarding faxes, telegrams and online chatrooms | Lawyer Ethics Alert Blogs

Hello and welcome to this Ethics Alert blog which will discuss the recent Florida Bar Board of Governors meeting wherein the BOG discussed rule changes to comply with a Florida federal district court judge’s Order finding that Bar rule which prevented non-certified lawyers from stating they have expertise or specialize in an area of law were unconstitutional and enjoining their enforcement. The injunction order was not appealed by The Florida Bar and there is currently a Bar moratorium on enforcing the rule. The case is Searcy et al. v. The Florida Bar et al., case number 4:13-cv-00664 (U.S. District Court, Northern District of Florida). The injunction order is attached and is in the federal court’s Pacer system here:

According to a March 1, 2016 Florida Bar News article, the chair of the Board Review Committee on Professional Ethics told the BOG at the meeting that the committee is considering several potential amendments; however, it has not agreed on a single version of the amendment. The committee chair said that the committee expected to make a recommendation at the board’s March 10, 2016 meeting; however, it is not clear whether the topic was discussed at that meeting. The Florida Bar News article is here:

The BOG review was started after a September 30, 2015 Order by U.S. Northern District of Florida Judge Robert L. Hinkle in a lawsuit filed against The Florida Bar by the Searcy, Denney, Scarola, Barnhart & Shipley, P.A. law firm. The lawsuit challenged Bar rules which permit only Florida Bar (or the equivalent) certified lawyers to hold themselves out as “experts” or “specialists” in their advertisements. The Order stated non-certified lawyers and law firms could have expertise in an area even if they were not certified and that the regulation prevented lawyers from claiming expertise in areas for which there is no available Bar certification and enjoined the Bar from enforcing the rule as applied.

Another Terrorist Attack in Europe//John Judis//Talking Points Memo

Another Terrorist Attack in Europe
From John Judis ...

Another terrorist attack, this time in Brussels. I don’t see an end to these, and at the same time I don’t think Americans or Europeans will accept a strategy of letting them play out on the grounds that less people die in terrorist attacks than in highway accidents or bathtub electrocutions. They will strengthen the hand of interventionists, but not sufficiently so that the threat can finally be eliminated rather than exacerbated. They will draw the United States and Europe into a conflict that it is not prepared to fight to the end, which would involve not just the military, but unprecedented diplomatic moves that would undo 150 years of Western intervention in the Middle East and North Africa.

Several points here:
Read More →

Monday, March 21, 2016

The Court Fight Is About Democracy | E.J. Dionne WAPO // RealClearPolitics

The Court Fight Is About Democracy | RealClearPolitics
By E.J. Dionne
March 21, 2016

WASHINGTON -- There's a reason beyond garden-variety partisanship that Senate Republicans resist even holding hearings on President Obama's nomination of Merrick Garland to the Supreme Court. Their gambit evades a full and open debate over the conservative judicial agenda, which is to use the high court in an aggressive and political way to reverse decades of progressive legislation.

The central irony here: The very conservatives who use "judicial activism" as a battering ram against liberals are now the aggressive judicial activists. It's precisely because Garland's record reveals him to be a devout practitioner of judicial restraint that an intellectually frank dialogue over his nomination would be so dangerous to the right. It would expose the radicalism of their jurisprudence.

The Economics Of Medicaid Expansion

Governors like Paul LePage and  have opposed Medicaid expansion saying that the 10% state contribution will burden the economy.  but they ignore the well known multiplier effect: those federal dollars employ thousands of health care workers, who spend the money they earn.  Andofcourse it improves the health of the population - reducing future medical costs, and saving, and improving lives.  - gwc
The Economics Of Medicaid Expansion
by Michael E. Chernew, PhD ( Professor of Health Care Policy and director of the Healthcare Markets and Regulation Lab at Harvard Medical School.)

The Affordable Care Act (ACA), particularly the expansion of Medicaid, has created considerable controversy, with 20 states opting not to expand the program, leaving over 3 million Americans uninsured who might otherwise be covered by Medicaid. With the recent election in Kentucky threatening Medicaid expansion there, and ongoing debate about the future of the Medicaid expansion program in other states, the topic is likely to remain high on the policy agenda.

Often the opposition to Medicaid expansion is couched in economic terms, with statements about the inability of states to afford the cost of coverage. Specifically, while the Federal government pays 100 percent of the cost of Medicaid expansion for 2014 through 2016, that share falls to 95 percent in 2017, 94 percent in 2018, 93 percent in 2019, and levels off at 90 percent for 2020 and beyond.

The concern is that the state’s 10 percent share of Medicaid expansion spending could represent a significant expenditure that the state could not afford. If taxes were raised to cover the expense, those taxes would dampen economic activity and, to some extent, harm the very people the ACA is intended to help. While the magnitude of these effects is subject to debate, the notion that states must fund a portion of the costs of Medicaid expansion is correct.
The Multiplier Effect

Yet the analysis presented above is incomplete. Even in steady state beginning in 2020, the states that do opt to expand receive 90 percent of the funding for Medicaid expansion from the Federal government. Those dollars do not sit idle. They largely support provision of care, and the largest share of that expense is labor. The workers in organizations supported by Medicaid spend the funds on everyday expenses. They eat at restaurants, buy groceries, and go to movies. The businesses who supply those services, many of whom will be in-state entrepreneurs, in turn spend the money on wages and supplies, and the cycle continues.

In economics this process is known as the “multiplier effect.” A dollar put into an economy creates more than a dollar of economic activity. The magnitude of that multiplier is again subject to debate, but a reasonable estimate could be between 1.5 and 2.0. Thus after 2020, the 90 cents received from the federal government for each dollar in Medicaid spending translates to between $1.35 and $1.80 in state economic activity (crucially assuming enough slack in the economy to absorb the spending).

Sunday, March 20, 2016

Posner: The Professional versus the Business Model in Law and Medicine - The Becker-Posner Blog

The Professional versus the Business Model in Law and Medicine--Posner - The Becker-Posner Blog
by Richard Posner

The central focus of economic analysis of markets is the activity of profit-maximizing business firms in unregulated competitive markets; and such firms are indeed the central players on the supply side of markets in a free-market economy. Analysis of profit maximization is complicated by the fact that large business firms are complex organizations, and persons who compose such a firm, ranging from shareholders to rank and file workers, have conflicting incentives which can blunt profit maximization to an extent. Competition is itself a complex activity, and firms often find it more profitable to collude in price and concentrate on product competition instead. There are also nonprofit enterprises and government producers to complicate the picture.

An important though it seems a diminishing example of a service provider that deviates from the standard model of a profit-maximizing competitive firm is a professional organization such as a law firm or a medical practice. Professionals include besides lawyers and doctors architects, nurses, teachers, engineers, clergy, and military officers (the list is not example), and they constitute an important segment of the economy; there are, for example, a million lawyers and more than 700,000 doctors.

Law and medicine are the oldest professions (other than clergy), the most prestigious and highly remunerated, the most influential, and the most discussed, praised, and criticized. They are also changing at a rapid rate—and in fact changing from professions to businesses, although the change may be reversed in the case of medicine. (I can’t see that happening in law.)

The traditional concept of the profession (the concept that is undergoing change) provides an interesting contrast to the concept of the profit-maximizing business firm. In the business model, the goal is profit maximization in a competitive environment that operates in a basically Darwinian fashion (survival of the fittest); risk is pervasive and both extraordinary profits and devastating losses are real possibilities. Employment and leadership in such an environment attract many and repel many. The people it attracts tend to be aggressive and daring. The ones it repel tend to be cautious and thoughtful.

In the traditional professional model, risk both upside and downside is trimmed by a combination of regulation and ethics both aimed at muting competition. With muted competition the lawyer or doctor can realistically aspire to a safe upper-middle-class income, but he is unlikely to become wealthy. The result, in combination with requiring postgraduate education and qualifying exams for entry into the profession and subjecting members of it to professional discipline, is to attract a type of person quite different from the entrepreneurial type—the latter a type exemplified by such extraordinarily successful college drop-outs as Bill Gates, Steve Jobs, and Mark Zuckerberg. The professional model attracts a more studious, intellectual, risk-averse type of person.

Why does society value such persons and create a comfortable niche for them? The answer is that some goods and services involve a degree of complexity that makes it very difficult for consumers to evaluate the quality of the goods and services. Legal services and medical treatment are important examples. Both involve considerable uncertainty (even the best lawyer loses some cases, even the best doctor fails to cure some patients). When a consumer is unable to determine the quality of a product or service, the provider has to be regulated, either directly as in the case of the regulation of the drug industry by the Food and Drug Administration or indirectly as in the professional model, in which the conditions for becoming a member of a profession encourage self-selection by persons likely to be trustworthy, responsible, and ethical because less inclined to cut corners in order to make a killing.

The professional model in law began to wane in the 1970s, with the beginning of the deregulation movement, which loosened restrictions on competition in legal services. The trend continued in subsequent decades, and was marked by an increased spread in earnings within law firms, an increased dispersion in the size of law firms, and increased turnover—in particular, the tendency of successful lawyers to move from firm to firm (taking their clients with them) in quest of higher incomes. Today, law firms closely resemble business firms. I am speaking mainly of law firms that handle corporate business, not of criminal or tort lawyers, who tend to practice by themselves or in small firms.

Corporate lawyers today don’t want just a comfortable upper-middle-class income; they want to be rich; and one reason is the increased risk they face. Few law firms (remember that I’m talking only about corporate-law firms) any more practice “lockstep” compensation, in which all partners of the same vintage in a firm are paid the same—a risk-minimizing method of compensation that used to be the norm in large law firms. Today a lawyer faces the risk, if his productivity declines, of seeing his income decline, or indeed of being pushed out of the firm altogether; and to cushion that risk, naturally he wants to earn as much as he can while he can.

Lincoln: Address before the Young Men's Lyceum of Springfield, Illinois

Abraham Lincoln demonstrated his vision early.  In an address at the age of 28 he deplored the wave of mob violence and lynchings of the day.
If you have never read this speech, now would be a very good time.
 - gwc
Lincoln: Address before the Young Men's Lyceum of Springfield, Illinois
January 27, 1838

***Theirs was the task (and nobly they performed it) to possess themselves, and through themselves us, of this goodly land, and to uprear upon its hills and its valleys a political edifice of liberty and equal rights; 'tis ours only to transmit these — the former unprofaned by the foot of an invader, the latter undecayed by the lapse of time and untorn by usurpation — to the latest generation that fate shall permit the world to know. This task of gratitude to our fathers, justice to ourselves, duty to posterity, and love for our species in general, all imperatively require us faithfully to perform.

How then shall we perform it? At what point shall we expect the approach of danger? By what means shall we fortify against it? Shall we expect some transatlantic military giant to step the ocean and crush us at a blow? Never! All the armies of Europe, Asia, and Africa combined, with all the treasure of the earth (our own excepted) in their military chest, with a Bonaparte for a commander, could not by force take a drink from the Ohio or make a track on the Blue Ridge in a trial of a thousand years.

At what point, then, is the approach of danger to be expected? I answer, If it ever reach us it must spring up amongst us; it cannot come from abroad. If destruction be our lot we must ourselves be its author and finisher. As a nation of freemen we must live through all time, or die by suicide.

I hope I am over wary; but if I am not, there is even now something of ill omen amongst us. I mean the increasing disregard for law which pervades the country — the growing disposition to substitute the wild and furious passions in lieu of the sober judgment of courts, and the worse than savage mobs for the executive ministers of justice. This disposition is awfully fearful in any community; and that it now exists in ours, though grating to our feelings to admit, it would be a violation of truth and an insult to our intelligence to deny. 

Accounts of outrages committed by mobs form the every-day news of the times. They have pervaded the country from New England to Louisiana; they are neither peculiar to the eternal snows of the former nor the burning suns of the latter; they are not the creature of climate, neither are they confined to the slaveholding or the non-slaveholding States. Alike they spring up among the pleasure-hunting masters of Southern slaves, and the order-loving citizens of the land of steady habits. Whatever then their cause may be, it is common to the whole country.

I know the American people are much attached to their government; I know they would suffer much for its sake; I know they would endure evils long and patiently before they would ever think of exchanging it for another — yet, notwithstanding all this, if the laws be continually despised and disregarded, if their rights to be secure in their persons and property are held by no better tenure than the caprice of a mob, the alienation of their affections from the government is the natural consequence; and to that, sooner or later, it must come.

Here, then, is one point at which danger may be expected.

The question recurs, "How shall we fortify against it?" The answer is simple. Let every American, every lover of liberty, every well-wisher to his posterity swear by the blood of the Revolution never to violate in the least particular the laws of the country, and never to tolerate their violation by others. As the patriots of seventy-six did to the support of the Declaration of Independence, so to the support of the Constitution and laws let every American pledge his life, his property, and his sacred honor — let every man remember that to violate the law is to trample on the blood of his father, and to tear the charter of his own and his children's liberty. Let reverence for the laws be breathed by every American mother to the lisping babe that prattles on her lap; let it be taught in schools, in seminaries, and in colleges; let it be written in primers, spelling-books, and in almanacs; let it be preached from the pulpit, proclaimed in legislative halls, and enforced in courts of justice. And, in short, let it become the political religion of the nation; and let the old and the young, the rich and the poor, the grave and the gay of all sexes and tongues and colors and conditions, sacrifice unceasingly upon its altars.