- “McConnell Demands Liability Protections in Next Coronavirus Bill” [Steven T. Dennis, Billy House, and Laura Litvan, Bloomberg; U.S. Chamber issue list] “Businesses Fear Lawsuits from Sick Employees, Patrons After Reopening” [Erik Larson, Edvard Pettersson and Christopher Yasiejko, Bloomberg] “Frivolous Litigators Bite the Hands That Care for Them” [Veronique de Rugy] “States pass lawsuit-protection measures as Pennsylvania resists” [Nicholas Malfitano, Legal Newsline]
- Retroactive workers’ comp coverage for the virus by state decree? Illinois commission beats hasty retreat after gesture in that direction [Susanne Sclafane (presumption of compensability) and Stephanie Jones/Insurance Journal, Angela Childers/Business Insurance (vote to pull back from idea was unanimous)
- White House executive order declaring emergency federal authority over meatpacking industry might have been welcomed by companies hoping for override of liability over worker illness [Liz Crampton and Gabby Orr, Politico, NBC News]
- “The Case That Could Change Product Liability” [Daniel Fisher, Chief Executive on Ford v. Bandemer at the U.S. Supreme Court] More personal jurisdiction cases bubbling up from Seventh, D.C. Circuits [Jim Beck] “Constitutional Limitations on Product Liability?” [Stephen McConnell]
- “Incorporating Catholicism: Dioceses are changing their secular legal forms to conform to canon law and insulate assets” [Stephen Bainbridge]
- “Taco Bell wins Chalupa price case after claiming plaintiffs ignored menu” [John O’Brien, Legal Newsline, earlier]
Advocates are pushing for laws much expanding the ranks of private actors required by law to inform to authorities on suspicions about child abuse (“mandatory reporters”). Naomi S. Riley quotes some of my misgivings: “As Walter Olson of the Cato Institute notes, increasing the number of mandated reporters could ‘incentivize’ people ‘to resolve uncertain, gray areas in favor of reporting.’ It will multiply “investigations based on hunches or ambiguous evidence which can harm the innocent, traumatize families, result in CPS [child protective services] raids, and stimulate false allegations,’ he says.” [Weekly Standard]
- U.S. Surgeon General’s office, WHO campaign against vaping, e-cigarettes. Lessons of harm reduction forgotten [Jacob Sullum, Jonathan Adler, Todd Krainin]
- Plenty of other hospitals are willing to do this surgery. Catholic facilities should have conscience right to refuse [AP/NJ.com on St. Joseph’s Regional Medical Center case, Stephen Miller/IGF]
- Study: states with stronger physician protection from malpractice suits had lower usage of imaging tests [Radiology Business on Suhui Li et al., Journal of the American College of Radiology]
- Hospitals that require employees to take flu shots to protect patients and others may pay dearly if they’re stingy with the religious exemptions [Jon Hyman]
- “Maybe For-Profit Hospitals Aren’t So Bad” [Shailin Thomas, Harvard “Bill of Health”]
- “New Study Finds 90% of California Pharmaceutical Plaintiffs are from Other States” [U.S. Chamber Institute for Legal Reform on Mark Behrens study for CJAC]
“A British woman attempted to sue her former lawyers for professional negligence, claiming that, alongside a number of other allegations, they failed to advise that finalizing divorce proceedings would inevitably cause her marriage to end.” [Independent, U.K.]
“The American Civil Liberties Union has filed a federal action against the U.S. Conference of Catholic Bishops, alleging that its ethical guidelines given to Catholic hospitals resulted in negligent care for a miscarrying woman.” The suit, in the name of a Muskegon, Mich. woman who allegedly experienced pain and suffering by not being advised at once to abort a doomed fetus, also names as defendants three individuals who have chaired a church-affiliated body by the name of Catholic Health Ministries. The suit does not however name as a defendant Mercy Health Partners, where plaintiff Tamesha Means was treated, nor does either the Bishops’ Conference nor CHM own Mercy. So what’s the legal theory? Well, the bishops issued ethical guidelines they expected Catholic-affiliated hospitals to follow, and CHM acted as Mercy’s “Catholic sponsor” vouching for its compliance with those guidelines. So maybe the theory consists of “incitement to commit malpractice.” Is it rude to point out that the law recognizes no tort of that sort? [ABA Journal, MLive, Alex Stein/Bill of Health (background on Michigan med-mal law)] See also: Seth Lipsky, N.Y. Post (“astounding” suit menaces defendants for hewing to their view of spiritual truths).
Voters in four states will decide same-sex marriage ballot questions on Nov. 6. As many readers know, I’ve been writing actively on the Maryland question, and those interested in catching up on that can follow the links here to find, among other things, my recent interview on the subject with the Arab news service Al-Jazeera, my thoughts on Judge Dennis Jacobs’s decision striking down Section 3 of DOMA (the federal Defense of Marriage Act), and my reaction to the other side’s “bad for children” contentions.
The Cato Institute has been doing cutting-edge work on the topic for years from a libertarian perspective; some highlights here.
Yet more: Hans Bader on religious liberty and anti-discrimination law [Examiner, CEI] And my letter to the editor in the suburban Maryland Gazette: “Civil society long ago decoupled marriage law from church doctrines.”
- Because Washington knows best: “U.S. ban sought on cell phone use while driving” [Reuters, earlier here, here, here, etc.] More here; and LaHood spokesman says Reuters overstated his boss’s position.
- Janice Brown’s Hettinga opinion: Lithwick can’t abide “starkly ideological” judging of this sort, except of course when she favors it [Root, earlier] At Yale law conclave, legal establishment works itself into hysterical froth over individual mandate case [Michael Greve] And David Bernstein again corrects some Left commentators regarding the standing of child labor under the pre-New Deal Constitution;
- Latest antiquities battle: Feds, Sotheby’s fight over 1,000-year-old Khmer statue probably removed from Cambodia circa 1960s [VOA, Kent Davis]
- Sebelius surprised by firestorm over religious (non-) exemption, hadn’t sought written opinions as to whether it was constitutional [Becket, Maguire] Obamanauts misread the views of many Catholics on health care mandate [Potemra, NRO]
- “20 Years for Standing Her Ground Against a Violent Husband” [Jacob Sullum] How Trayvon Martin story moved through the press [Poynter] And Reuters’ profile of George Zimmerman is full of details one wishes reporters had brought out weeks ago;
- Coaching accident fraud is bad enough, making off with client funds lends that extra squalid touch [NYLJ]
- Kip Viscusi, “Does Product Liability Make Us Safer?” [Cato’s Regulation magazine, PDF]
It has been asserted in various outlets that many states already mandate contraceptive coverage, that the Catholic church has been content to live with those mandates, and so that the current firestorm over the ObamaCare provision must just be something cooked up by Republican consultants. Here is a response from the National Council of Catholic Bishops via NR’s Kathryn Lopez:
6. The federal mandate is much stricter than existing state mandates. HHS chose the narrowest state-level religious exemption as the model for its own. That exemption was drafted by the ACLU and exists in only 3 states (New York, California, Oregon). Even without a religious exemption, religious employers can already avoid the contraceptive mandates in 28 states by self-insuring their prescription drug coverage, dropping that coverage altogether, or opting for regulation under a federal law (ERISA) that pre-empts state law. The HHS mandate closes off all these avenues of relief.
More on the controversy from my Cato colleague Roger Pilon and from Jonathan Rauch. And: John Cochrane on the wider folly of letting the feds mandate contraceptive coverage in the first place: “Sure, churches should be exempt. We should all be exempt.”
Ross Douthat on how the ObamaCare Pill edict points up some “trade-offs… which liberal communitarians don’t always like to acknowledge. When government expands, it’s often at the expense of alternative expressions of community, alternative groups that seek to serve the common good.” More: Steve Chapman.
HHS secretary Kathleen Sebelius said giving church-related sponsors of health plans an additional year to comply with the contraceptive mandate “strikes the appropriate balance between respecting religious freedom and increasing access to important preventive services.” Really? If religious freedom is in fact at stake, what kind of “balance” is attained if it gets a one-year reprieve but then expires? A balance between current freedom of institutional conscience and future lack of same? [AP] On the Obama administration’s remarkably unfriendly stance toward self-governance by church institutions, see my coverage of this term’s Hosanna-Tabor Supreme Court case. More: Michael Greve has a must-read analysis predicting the directive’s downfall in court, and pointing out the procedural dodginess of this and much other regulation implementing the ACA. And Thom Lambert asks: “What if the Government Ordered the Human Rights Campaign to Cover Conversion Therapy for Gays?”