“An oft-forgotten provision of Obamacare is being pushed over the finish line by Trump’s FDA.” [Helena Bottemiller Evich, Politico; Jacob Sullum (FDA overstates evidence); Mike Riggs (FDA honcho Scott Gottlieb “is not a free market firebrand”); Christian Schneider, USA Today] Earlier on FDA menu labeling here.
- In welcome reversal of Obama-era ban, FDA will once more permit direct-to-consumer genetic testing [Meghana Keshavan/STAT News, FDA press release]
- Will California law hold a pharmaceutical maker liable — in perpetuity — for a drug that it did not make and did not sell? [Steven Boranian/Drug & Device Law, PLF on T.H. v. Novartis]
- Litigation funding group chases clients in hip replacement litigation [PR Newswire]
- ACA penalizes hospitals for high Medicare readmission rates, but new study links that policy to higher mortality for heart failure patients [Arnold Kling, Ankur Gupta et al., JAMA Cardiology, Cristina Boccuti and Giselle Casillas, Kaiser Family Foundation]
- Litigation tourism model that has done well for plaintiff’s bar now circling drain after Supreme Court’s Bauman, Bristol-Myers Squibb decisions [Jim Beck, Drug & Device Law, more, yet more; related on West Virginia, and from Michelle Yeary on choice of law and forum non conveniens]
- “FDA Commissioner Scott Gottlieb Goes to Bat For Evidence-Based Opioid Policies” [Mike Riggs, Reason] “Abuse-Deterrent Opioids Cross an Ethical Line” [Jeffrey Singer, Orange County Register]
“The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!” President Donald Trump tweeted on Saturday morning. It was one of a series of tweets assailing the temporary restraining order issued by a federal judge in Washington state momentarily barring enforcement of the President’s executive order on visas and border crossing. Wait till he gets to the so-called Ninth Circuit!
It is still unusual to encounter the epithet so-called in high official pronouncements, in the United States at least (Pravda used to be fond of tak nazyvayemyye back in the day). But we have come to expect Trump to break new ground in judicial disrespect following his attacks last year as a candidate on federal judge Gonzalo Curiel of the Southern District of California, who was presiding over the Trump University case. I wrote then:
…In his rambling remarks, Trump also referred to Judge Curiel as “Mexican”: the jurist, previously the chief federal prosecutor for drug cases in southern California, was born in Indiana. Stoking by repetition, as his crowd of thousands booed, Trump called the federal judge “a hater of Donald Trump, a hater. He’s a hater,” and said he should be placed under investigation by the court system. I wonder whether anyone will be shocked if the judge requests personal protection for himself and his family as the trial proceeds.
Obama’s 2010 State of the Union remarks railing at the Justices of the Supreme Court in their presence regarding Citizens United were bad. This is far worse: the case is still in progress, Trump is a party, and the attack is on a single judge who will now find his task of ensuring a fair trial complicated. Trump, who speaks regularly around the country, chose to unleash the diatribe in the locality where the judge and others who will participate in the case, such as jurors, work and live.
As I noted at the time, the norm of not personally attacking judges has been eroding for years, not only at the hands of President Barack Obama (who publicly scolded judges not only in his 2010 State of the Union speech but also repeatedly during the court review of ObamaCare, as Josh Blackman documents) but from influential opinion leaders as well. One might cite in particular the extraordinarily vicious interest-group-led campaigns against judicial nominees, currently being cranked up against Judge Neil Gorsuch of the Tenth Circuit but familiar from a dozen earlier nominee battles as well.
In the mean time, like his remarks on Judge Curiel, Trump’s comments on Judge Robart could complicate the efforts of his own lawyers in court: “Either they have to defend the statements that Judge Robart is a ‘so-called judge,’ which you can’t do, or they have to distance themselves from the president, who is their boss,” as University of Pittsburgh law professor Arthur Hellman put it.
And the problems get more serious from there. Writes William Baude: “to call him a ‘so-called’ judge is to hint that he is not really a judge, that he lacks judicial power. It is just a hint, but it flirts with a deadly serious issue.”
That issue arises from the difference between criticizing the quality of a judicial decision and criticizing the authority of the judge to issue it:
If the court has authority, then the parties are legally required to follow its judgment: even if it is wrong; even if it is very wrong; even if the President does not like it. But if the court does not have authority, then perhaps it can be defied. So the charge of a lack of authority is a much more serious one. It is the possible set-up to a decision to defy the courts — a decision that is unconstitutional if the court does indeed have authority to decide the case.
- Today at Cato, Josh Blackman discusses his new book Unraveled: Obamacare, Religious Liberty, and Executive Power with comments from Washington Post Supreme Court reporter Robert Barnes and Philip Klein of the Washington Examiner, Ilya Shapiro moderating [watch live 12 noon Eastern]
- Breed-specific laws fuel mass euthanasia: “Montreal Gearing Up To Sentence Huge Numbers Of Innocent Dogs To Death” [Huffington Post]
- Feds prepare to mandate mechanical speed governors capping road speed of tractor-trailers; truckers warn of crashes and traffic jams [AP/San Luis Obispo Tribune]
- “You have to go back to the Red Scare to find something similar,” said Rep. Eddie Bernice Johnson (D-Texas) of advocacy-group subpoenas by Hill committee in “Exxon Knew” probe. Or just five months to the CEI subpoena [Washington Post hearing coverage which oddly omits mention of CEI episode]
- “I’m not here to take away your guns.” Why Hillary Clinton’s assurances ring hollow [Jacob Sullum] Trump’s comments defending stop-and-frisk and no-fly no-buy further undercut his never-impressive claims as defender of gun liberty [AllahPundit, Leon Wolf, Ilya Somin]
- Why my Cato colleagues believe the Trans-Pacific Trade Partnership (TPP) is worth supporting as a trade liberalization measure despite some suboptimal aspects [Daniel J. Ikenson, Simon Lester, Scott Lincicome, Daniel R. Pearson, K. William Watson, Cato Trade]
- FDA to dental consumers: you can’t handle the tooth [New York Times via Alex Tabarrok]
- “How lawyers scare people out of taking their meds” [Lisa Rickard (U.S. Chamber), Washington Post]
- Lawsuits fail to bring improvements to nursing homes [ABA Journal]
- “Everything,” new Institute for Justice short film about costs of regulating bone marrow donation, has upcoming screenings in D.C. area, Breckinridge, Colo. and elsewhere;
- Aetna pulls out of most ObamaCare exchanges, and the acrimony flies [WSJ editorial] “Did the Medicaid expansion limit labor force participation?” [Tomas Wind via Tyler Cowen]
- Posting will be slower in coming weeks as I conduct my own in-person investigation of the state of America’s medical system. Thanks for bearing with me!
- The proportion of jobs requiring a license has risen from roughly 5 percent in the 1950s to 25 percent now, and why that matters [Edward Rodrigue and Richard V. Reeves, Brookings] Signs of bipartisan agreement that occupational licensing has gone too far [J.D. Tuccille, Reason] And surprisingly or not, it’s emerged as an Obama administration cause [Matt Yglesias, Vox]
- “25 quick takes (no kidding!) on the EEOC’s proposed national origin guidance” [Robin Shea]
- “Trial lawyers’ pecuniary interests have shifted our focus toward termination decisions, instead of hiring and promotion practices” [Merrily Archer]
- Is it lawful to move full-time employees to part-time work to avoid ObamaCare mandates? [Jon Hyman, related]
- Florida Supreme Court decision spells Christmas for workers’ comp lawyers, and insurers proceed to file 17 percent rate increase, so everyone’s happy [Insurance Journal]
- “Uber and the gig economy’s existential litigation threat” [Alison Frankel] Labor union grip on state legislature imperils benefits of sharing economy [Steven Greenhut]
- “The IRS warned Obama it was illegal to pay ObamaCare subsidies to insurance companies.” They went ahead anyway. [The Week, Paul Caron/TaxProf]
- Medical liability payouts back on rise after decade of decline; of top ten states per capita, all are in Northeast except New Mexico (6th) and Illinois (8th) [New Jersey Civil Justice Institute]
- “Why isn’t there more telemedicine?” [Austin Frakt, NYT via Tyler Cowen]
- Would Prince have fared better had law allowed easier access to anti-addiction drug buprenorphine? [Jeb Kinnison]
- Down memory lane: how advocacy foundations funded Elizabeth Warren’s research on medical bankruptcy [Jon Henke]
- Ways to get cheaper pharmaceuticals through competition rather than regulation [Charles Hooper and David Henderson, Regulation magazine (Cato), more from Henderson]
Vaping isn’t the only issue on which the Food and Drug Administration has stopped its ears to distress cries from the regulated community. It has now followed through with a stringent rather than lenient version of the menu labeling concept mandated by the ObamaCare law, one that will extend coverage to doubtful areas including some restaurant coupons and advertisements and ensure burdensome compliance issues for variety items such as toppings on pizza or ice cream. [CS News, Elizabeth Harrington/Free Beacon, earlier]
The Affordable Care Act, otherwise known as ObamaCare, sometimes gives employers an incentive to reduce the work hours of employees so that they will not meet eligibility thresholds for costly health insurance. Lawyers for employees have responded by arguing that this reduction of hours constitutes “retaliation” under ERISA and is itself unlawful. Now a Southern District of New York federal court seems to have bought the theory, at least to the extent to denying a defense motion to dismiss. [R. Pepper Crutcher, Balch & Bingham on Marin v. Dave & Buster’s, Inc.]
- FDA and other agencies launch crackdown on more than 100 dietary supplement companies [Orange County Register editorial, thanks for quoting]
- 14 years ago Sally Satel warned that political correctness was getting into medical schools in a big way. How prescient was that? [Yale Daily News via Dave Huber/The College Fix on Yale med-school dean’s capitulation to demands for “anti-oppressive” curriculum reform, video of Satel on C-SPAN “Book Notes” with Brian Lamb discussing “P.C., M.D.“]
- Unexpectedly! “Insurer cutbacks squeeze patients out of high-end care” [Houston Chronicle]
- “Deflate Drug Prices by Reforming the FDA” [Richard Morrison, CEI, thanks for quote]
- Penny wise: Obama plan would penalize doctors who recommend routine prostate cancer tests for older men [WSJ, Betsy McCaughey/New York Post]
- “Clearly, it would take an extraordinarily overbearing [British] state to move [sugar] consumption anywhere close to this target.” [Christopher Snowdon]
- Widely asserted ethical prohibition on paying organ donors comes at more than a monetary price [Alex Tabarrok](link fixed)