Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for 2014

Experimental drugs, terminal patients, and “right to try” statutes

Many libertarians have expressed interest in statutes, enacted in five states, which seek to give incurably ill patients access to “investigational” drugs which have passed the first stage in the FDA’s approval process but not reached final approval. Nice goal, but according to James Beck at Drug & Device Law:

…we don’t think these statutes are going to accomplish much, let alone achieve their purpose of making investigational drugs generally available to terminally ill patients having no other choices.

One obstacle is the supremacy of the FDA:

States can pass all the laws they want, but unless the FDA gives its okay to programs more expansive than its compassionate use (“expanded access”) program, nothing’s going to happen. It’s called “preemption.”

A second is liability. While the new crop of statutes are an improvement on earlier proposals which sought to conscript pharmaceutical companies’ participation, they still give drugmakers no strong protection from resulting lawsuits, and sometimes include language hinting at the reverse. Even though plaintiff’s lawyers would face their own challenges of proving causation and damages, there would still be unknowable legal downside with relatively scant upside, making for poor incentives to participate in the program by making investigational drugs available.

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Politics roundup

  • Weekly Standard runs my parody song about the local governor’s race, “Show Me the Way to Frederickstown, or, Lost in Maryland“; Update: Here’s Lauren Weiner’s rendition, to the tune of “Sweet Betsy from Pike.” Freelance writer Lauren Weiner has lived in Baltimore since 1992. [improved YouTube link with video]
  • Also on Maryland governor’s race: it’s not every day a GOP challenger blames a Democratic incumbent for issuing too few pardons [Radley Balko; more on clemency]
  • Harry Reid forces are latest to demagogue Stand Your Ground laws and role of American Legislative Exchange Council (ALEC), but Glenn Kessler calls them on it with Four Pinocchios [Washington Post “Fact Checker”]
  • Enough non-citizens vote illegally “that their participation can change the outcome of close races.” [Jesse Richman and David Earnest, Washington Post Monkey Cage; a response]
  • State attorney general offices are now politicized and targets of lobbying, and why should we be surprised at that given all the power they’ve grabbed for themselves as business regulators in recent years? [David Boaz, Cato] Hot state-AG races this year include Wisconsin, Nevada, New Mexico, Arkansas [John Fund]
  • Two views on Alabama proposed Amendment One, curbing use of foreign law: Paul Horwitz (adds nothing to Alabama constitution not already there), Quin Hillyer (insurance against bad judicial decisionmaking);
  • More about the Greg Abbott tree-fall settlement called into question by opponent Wendy Davis [Hugh Kelly, TLR, earlier]
  • Long Island legislator withdraws from State Senate race after charges of high-dollar law-firm misconduct [Newsday]
  • Defaulted mortgages: “Coakley lawsuit has ties to key backer’s interests” [Boston Globe via Funnell] Flashback: Radley Balko in 2010 on Martha Coakley’s awful prosecutorial record (up to that point) [Politico; related, Harvey Silverglate on prosecutors who run for higher office; earlier]

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Illinois judge rebuffs prolific folk-law filer

Mr. Wemple’s various lawsuits have named as defendants all Illinois judicial circuits as well as, more recently, “the Illinois State Bar Association and all of its members,” for conscripting him into a legal process that is “defective and unsafe for its intended purpose in that it generates degeneration financially, psychologically and/or physically.” One of his filings charged the state bar association with “treason” of sundry varieties, not a well-formed complaint since “treason is a criminal offense, not a basis for a civil lawsuit.” A no-longer-patient judge has ordered him added “to the list of ‘restricted filers’ (sometimes called ‘vexatious litigants’) who typically must seek leave before filing anything (and pay fees up front) because of this sort of history.” [Lowering the Bar]

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Free speech roundup

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Next Monday at Cato: Damon Root on Overruled

If you’re in D.C., RSVP and register for Cato’s luncheon event on the publication of Damon Root’s Overruled: The Long War for Control of the U.S. Supreme Court. Description:

Featuring the author Damon Root, Senior Editor, OverruledDamonRootReason magazine and Reason.com; with comments by Jeffrey Rosen, Professor of Law, George Washington University, and President & CEO, National Constitution Center; and Roger Pilon, Vice President for Legal Affairs, Cato Institute, and Director, Cato Center for Constitutional Studies; moderated by Walter Olson, Senior Fellow, Cato Institute.

What is the proper role of the Supreme Court under the Constitution? Should the Court be “active” or “restrained”? Or is that even the proper way to look at the question, however much we’ve heard it put that way for several decades now? In his new book, Damon Root traces this debate from the Constitution’s conception to the present. His central focus, however, is on the emergence of the modern libertarian approach, which cuts through the often sterile debate between liberals and conservatives and points to the Constitution itself by way of determining the proper role of the Court under it. Please join us for a refreshing account of this recent history.

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Marc Andreessen on getting radicalized

Netscape founder Marc Andreessen, quoted in New York magazine “Intelligencer”:

If you have been in an Uber car and gotten pulled over and had the car seized out from under the driver when you were like in the middle of a trip that you were otherwise having a good time on, you might be a little bit radicalized. You might all of a sudden think, Wait a minute, what just happened, and why did it happen? And then you might discover what the taxi companies did over the last 50 years to wire up city governments and all the corruption that’s taken place. And you might say, “Wait a minute.” There’s this myth that government regulation is well intentioned and benign, and implemented properly. That’s the myth. And then when people actually run into this in the real world, they’re, “Oh […] I didn’t realize.”

One of my favorite things of all time is George McGovern, who ran for president in ’72 as a hyperliberal. Of course Nixon [beat him badly]. And in 1992 he wrote a column for The Wall Street Journal which told the story of his life after he left politics, when he bought an inn in Connecticut. And he said, “Oh my God, I didn’t realize.” And the “Oh my God, I didn’t realize” was: I did not realize what a layered impact 50 or 100 years of regulations and laws applied on small-­business owners actually meant.

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Labor and employment roundup

  • Operator of Jimmy John’s sandwich shops asked low-level employees to sign a noncompete. What would be the point? [Bainbridge, Hyman]
  • GOP Congress might take aim at a range of current union and NLRB practices including political dues spending without member opt-out [Sean Higgins, Washington Examiner]
  • Reminder: turning union activity into a protected category under the Civil Rights Act is one of the very worst ideas around [George Leef, earlier on Ellison-Lewis proposal here and here]
  • Scrutiny of occupational licensure intensifies [Ira Stoll]
  • “House Committee Examines EEOC Transparency and Accountability Legislation” [On Labor]
  • “The Dawn of ‘Micro-Unions’: A Scary Proposition for Employers” [John G. Kruchko, Kevin B. McCoy, Ford Harrison, earlier here, etc.]
  • Immigrant status and national origin discrimination: “DOJ Brings Issue of Hiring Documentation to Forefront” [Daniel Schwartz]

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