Our system lets trial lawyers win jackpot jury verdicts even when science is not on their side. Case in point: Roundup. “Glyphosate, the active ingredient in the world’s most widely used weedkiller, does not cause cancer. Yet, for the second time, a jury has recently sided with the plaintiff in a lawsuit alleging that glyphosate does and did cause cancer. What are we to make of this?” [Val Giddings, Information Technology and Innovation Foundation, Genetic Literacy Project graphic on what regulators and research agencies think, earlier here and here]
My new piece at Commentary on a San Francisco jury’s verdict ordering Bayer/Monsanto to pay $289 million to a school groundskeeper who blamed Roundup herbicide for his cancer. It bids to go down in the history books alongside the lawsuits “claiming that silicone breast implants caused auto-immune disease, common childhood vaccines caused autism, the morning sickness drug Bendectin caused birth defects, one or another make of car suddenly accelerated without any input from the driver or gas pedal, and so forth.”
At the end it concludes: “Eventually, our liability system does often get around to rejecting baseless scientific claims of causation, especially since the improvement in the handling of expert evidence embraced by the U.S. Supreme Court in Daubert v. Merrell Dow (1993). Before it gets there, however, it sometimes redistributes large sums—often to claimants, even more reliably to lawyers—and often destroys large amounts of value. In the days after the San Francisco verdict, the value of Bayer stock dropped by more than 10 billion euros. It’s expensive when error prevails.” More: The Logic of Science (“Courts don’t determine scientific facts.”) Earlier on glyphosate here. And a note on the perhaps-surprising tax implications under perhaps surprising provisions of the 2017 tax reform: Robert Wood.
- Current Louisiana governor has brought back parishes’ coastal-erosion suits against oil companies [Erin Mundahl, Inside Sources]
- Roundup saga: EPA says glyphosate not likely to be carcinogenic to people [Tom Polansek, Reuters, earlier]
- “Can Land Uninhabitable by an Endangered Species Nonetheless Be ‘Critical Habitat’ Under the Endangered Species Act?” Supreme Court grants cert in Weyerhaeuser v. U.S. Fish and Wildlife Service [Jonathan Adler]
- “Oakland Would Pay 23.5% Of Recovery From Its Global Warming Lawsuit To Private Lawyers” [John O’Brien, Legal Newsline; more, John Burnett, Washington Examiner]
- Does this mean casually picking a feather up off the ground will no longer merit prison time? Department of Interior announces new interpretation of migratory bird law meant to bring sense to “incidental take” issue;
- For elephant conservation, sustainable use based on property rights might lead to better results than trade bans [Branden Jung, Wisconsin Law Review/SSRN]
- “Will Spokane Pass an Expensive, Unenforceable Ban on Rail Shipment of Fossil Fuels?” [Erin Mundahl, Inside Sources] New York Gov. Andrew Cuomo blockades a natural gas pipeline, and New England economy pays the price [WSJ]
- “Plaintiff firms have filed some 800 complaints against marijuana businesses” alleging California Prop 65 (toxics warnings) violations [WSJ editorial, more on Prop 65]
- Encyclopedia of Libertarianism, originally published in 2008 under editorship of Ronald Hamowy and now free online at Cato Institute, has article on “Environment” by Jonathan Adler; more background here;
- Fake all the horns: entrepreneur’s scheme could make rhino poaching uneconomic, but enviro groups dead set against [John Stossel/Reason post, video]
- Yes, you are ingesting pesticides. No, it’s not a problem [Matan Shelomi, Quora/Forbes]
- The economic way of thinking tends to inoculate one against fads like the peak oil scare [Ron Bailey]
- California law requires cities, counties to generate elaborate plans for new housing. No need to grant permits though [Liam Dillon, L.A. Times]
- Strenuous campaigns to block fossil fuel infrastructure have helped saddle Rhode Island with some of the highest electric rates in the land [Douglas Gablinske, Providence Journal]
- Ronald Bailey reviews Getting Risk Right: Understanding the Science of Elusive Health Risks, by Geoffrey Kabat [Reason last winter]
- Update: judge strikes down Montgomery County, Md. ban on common lawn pesticides [my Free State Notes post]
- Short video with Prof. Eric Claeys (George Mason/Scalia) on Penn Central v. City of New York (1978), the leading case in regulatory takings law [Federalist Society]
- Scientist leading WHO review of Roundup chemical knew of but omitted recent study finding no cancer risk; California went ahead and listed glyphosate anyway [Reuters Investigates, Karl Plume/Reuters on California action, Kiera Butler/Mother Jones]
- YIMBY (Yes In My Back Yard) movement in San Francisco, other cities says build more housing to tame housing costs [Alex Tabarrok] Zoning laws sometimes respond to tiny-house movement, and sometimes don’t [Curbed]
- Federalist Society convention panel on Justice Scalia’s property rights jurisprudence with John Echeverria, James W. Ely, Jr., Roderick Hills, Jr., Adam Laxalt, Ilya Somin, Judge Allison Eid moderating;
- Your regulated residence: “Santa Monica Moves to Make All New Homes Net-Zero Energy” [Mental Floss]
- “King County, Washington, Caught Digging Through Residents’ Trash” [Christian Britschgi/Reason; see also on Seattle composting regulations]
- “EPA to big cities: Stop killing rats with dry ice” [Aamer Madhani, USA Today]
- “Policing for profit in private environmental enforcement” [Jonathan Wood; Clean Water Act citizen suits]
I’ve got a new post at Cato at Liberty about a proposed countywide ban on common lawn and turf pesticides in Washington, D.C.’s suburban Montgomery County. The best part is that county officials are frantically maneuvering to get the county’s own playing fields exempted from the ban. The piece concludes:
Libertarians often note that the state freely bans private conduct in which it’s happy to indulge itself — federal investigators can lie to you but it’s a crime if you lie to them, adopting federal accounting practices in your own business is a good way to get sent to prison, and so forth. But the double standard asked for here could wind up being — well, to coin a phrase, as bald as a Rockville lawn.
More: From the Washington Post’s piece, quoting a retired minister who lives in Silver Spring: “My lawn is such a little fragment of American Freedom. Please respect it.” [cross-posted at Free State Notes]
More: Kojo Nnamdi Show, Euvoluntary Exchange (more on provisions of bill, including enumeration of “non-essential” pesticides to be restricted, a list that incorporates by reference lists in use in other jurisdictions like Ontario and the European Commission and grants the county executive authority to name others; links back to this county document); Gazette in October; Brad Matthews, Watchdog.
- Mass torts specialists vs. vendor: “Prominent Plaintiffs’ Attorneys Ordered to Pay Up After Losing Breach of Contract Trial” [Above the Law]
- “You’ll have to get it on the street” — NYC’s thriving black market in pesticides [NYT, more]
- Benjamin Barton on his new book, “The Lawyer-Judge Bias” [Truth on the Market, earlier here, etc.]
- Medicare will not press “secondary payer” liability clawback claims below $300 [Miller and Zois, PoL, NLJ]
- Class action roundup: “Sleeper” Supreme Court case raises question of whether class action certification requires consumer harm [Fisher/Forbes] Important Easterbrook opinion in Aqua Dots case puts curbs on class certification [PoL, Fisher/Forbes, Beck] Frey, Mortenson et al.: “The non-fiction class action” [Trask, OUP blog; earlier here, etc.]
- Free speech roundup: Canada proposal could criminalize linking to alleged hate speech [Hosting Industry Watch] More on Canadian denouncers of speechcrime [Ken at Popehat] You don’t say: “$60,000 Ruling Against Truthful Blogger Tests Limits of the First Amendment” [Citizen Media Law] What happens when a defamation plaintiff asks a court for a takedown order? [same] Argentina: subpoenas step up pressure on reporters, editors who report on economy [NYT via Walter Russell Mead]
- Should the law punish energy companies whose operations kill birds? Depends on whose osprey is being gored [Perry]
Explosive testimony in a Los Angeles courtroom after a judge begins digging into indications of possible fraud in lawsuits by Nicaraguans against Dole Food alleging toxic harms from banana pesticides (L.A. Times via Cal Biz Lit, WSJ law blog; earlier at Overlawyered). The fraud went on for decades, a Dole lawyer charged, and included recruiting and coaching poor Nicaraguan men to pose as having been rendered sterile, even if they had children and had never worked on banana plantations. A California jury had awarded millions of dollars in one of a string of cases that drew controversy over the competence of stateside courts in evaluating claims over injuries that took place in foreign countries. According to the L.A. Times, one lawyer representing the plaintiff’s side in the litigation expressed regret over the actions of a co-counsel and said “all parties were in a nightmare situation.” Bloomberg:
Most of the employment records of Dole workers in Nicaragua were destroyed in the aftermath of the Sandinista revolution, opening the door to the fraudulent claims, Edelman said at the hearing.
Nicaraguan witnesses for Dole whose faces were hidden and whose voices were distorted to prevent identification, said in videotaped statements shown in court that they feared retribution if it became known they provided information to company investigators.
“They even would set fire to my house, even with my family in there,” one witness said. “These people don’t care.”
The cases of thousands more plaintiffs from poor banana-growing countries are waiting for trial in Los Angeles; Dow Chemical is also a defendant, because it manufactured the pesticide. [Update Apr. 24: judge tosses two consolidated lawsuits against Dole]
For another dramatic episode in which poor Latin American plaintiffs have surfaced in U.S. courts with hard-to-disprove claims, see the case of purportedly illegitimate Guatemalan children left fatherless by international air crashes (Nov. 29, 2000).