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Massachusetts

“Bowing to a forceful majority of opinion, the [Westminster, Mass.] Board of Health has killed its proposed ban on tobacco sales.” [Fitchburg Sentinel and Enterprise, AP ("This is a free country?" sign), Chris Snowdon ("The anti-smokers of Westminster... had to demand prohibition before the townspeople finally realized that they were dealing with prohibitionists"), earlier]

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Townspeople came out loudly and in force to oppose the proposed Westminster, Mass. ban on all tobacco sales, and that has thrown advocates back a bit [New York Times, MassLive, earlier]:

“They’re just taking away everyday freedoms, little by little,” said Nate Johnson, 32, an egg farmer who also works in an auto body shop, as he stood outside the store last week. “This isn’t about tobacco, it’s about control,” he said.

Right he is. And despite the Times reporter’s lifted eyebrow at the notion that “outside groups” are encouraging town officials to go forward with the ban, it’s worth asking how Westminster, Mass., population 7,400, came to have its very own “tobacco control officer.” Do you imagine the townspeople decided to create such a position with local tax funds? If so, read on.

WestminsterSealFor well over a decade the Massachusetts Municipal Association has run something called the Tobacco Control Technical Assistance Program, assisted by grant money from the state Department of Public Health. It does things like campaign for town-by-town hikes in the tobacco purchase age to 21, and town-by-town bans on tobacco sales in drug stores. It will surprise few that it has been in the thick of the Westminster situation.

This article, written for a friendly audience of public health advocates, frankly describes how the MMA project, with assistance from nonprofit and university groups as well as the state of Massachusetts, worked to break down the reluctance of town health boards to venture into restrictions on tobacco sales (scroll to “Roles of the Massachusetts Tobacco Control Program, Local Boards of Health, and Tobacco Control Advocates”);

Local boards were enticed into hiring tobacco control staff by the DPH’s tobacco control grants. As a participant in the process explained, “[L]ocal boards of health looked at it as ‘oh, it’s a grant. Let’s apply for this grant. So now, what do we have to do, now that we’ve got it?’” … The grants dictated that local boards use those community members they had hired as their staff to assist them in enacting and enforcing tobacco control regulations…

The staff paid for with money from outside the town seem to have seen their job as, in part, lobbying the local officials: “We’ve had to work on each individual board [of health] member to get them to come around,” said one.

The account continues with many revealing details of how the outside advisers managed to orchestrate public hearings to minimize critics’ voice, deflect challenges with “we’ll take that under advisement” rather than actual answers, and in the case of particularly intense opposition, “back off for a couple of months” before returning. “Grant-funded regulatory advocates were able to counter all of [opponents'] arguments and tactics.”

In other words, an extra reason for the townspeople of Westminster to be angry is that they have been paying to lobby themselves. And it’s worth knowing exactly how the game plan works, because similar ones have been rolled out to localities in various states not only on “tobacco control” but on “food policy,” environmental bans and other topics. Grass roots? If so, most carefully cultivated in high places.

Update Nov. 21: board drops plan in face of overwhelming public opposition.

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Election open thread

by Walter Olson on November 5, 2014

Trial lawyer and inveterate Litigation Lobby booster Bruce Braley lost his Iowa senate bid (“He comes across as arrogant, and I think it’s because he is,” said an unnamed Democratic official.) Sen. Mark Pryor, chief Senate handler of the awful CPSIA law, lost big.

Massachusetts voters again rejected Martha Coakley, whose prosecutorial decisions we have found so hard to square with the interests of justice. The Wisconsin Blue Fist school of thought, which sees organized government employees as the natural and truly legitimate governing class, met with a rebuff from voters not only in Wisconsin itself but in neighboring Illinois (where Gov. Quinn, of Harris v. Quinn fame, went down to defeat) and elsewhere. Colorado voters rejected GMO labeling, while a similar Oregon bill was trailing narrowly this morning but not with enough votes to call.

California voters rejected Prop 46, to raise MICRA medical liability limits, require database use and impose drug testing of doctors, by a 67-33 margin, and also rejected Prop 45, intensifying insurance regulation, by a 60-40 margin (earlier).

I’ve written a lot at my Free State Notes blog about the governor’s race in my own state of Maryland, and unlike most others was not surprised at Larry Hogan’s stunning upset victory. The politics category there includes my letter to Washington Post-reading independents and moderates about why they should feel comfortable electing Hogan as a balance to the state’s heavily Democratic legislature, as well as my parody song about what I thought a revealing gaffe by Hogan’s opponent, Lieutenant Governor Anthony Brown.

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Politics roundup

by Walter Olson on October 30, 2014

  • 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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In Bristol County, Mass., the force of public prosecution will protect your lawful comings and goings only when the D.A. approves of them [Eugene Volokh on environmentalist blockade case, earlier]

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Police and prosecution roundup

by Walter Olson on September 11, 2014

  • Enviro activists unlawfully block coal ship, Massachusetts prosecutor expresses approval by dropping charges [James Taranto, Jacob Gershman/WSJ Law Blog, ABA Journal]
  • Unfortunately-named Mr. Threatt charged with “robbery that happened while he was in jail” [Baltimore Sun via @amyalkon]
  • “How conservative, tough-on-crime Utah reined in police militarization” [Evan McMorris-Santoro, BuzzFeed] More: What if we needed it someday? San Diego Unified School District defends acquisition of armored vehicle [inewsource.org] And Senate hearing [AP]
  • “Machine-based traffic-ticketing systems are running amok” [David Kravets, ArsTechnica]
  • Thanks, Fraternal Order of Police, for protecting jobs of rogue Philadelphia cops who could cost taxpayers millions [Ed Krayewski; related earlier]
  • Study: returning from 6- to 12-person juries could iron out many racial anomalies at trial [Anwar et al, Tabarrok]
  • Courts can help curb overcriminalization by revitalizing rule of lenity, mens rea requirement [Steven Smith]

A new paper estimates that Massachusetts voters’ decision to end rent control added $2 billion to the value of Cambridge, Mass. residential housing stock over 10 years. While some of this represents the improved worth of rental property whose value had been artificially suppressed by the previous law, much of it reflects improvements in the value of other, nearby property that had never been under rent control, as increased rates of renovation and improvement made whole neighborhoods more desirable. “In net, our estimates imply that more than half (55 percent) of the capitalized cost of rent control was borne by owners of never-controlled properties, illustrating both the importance of spillovers in housing markets and the potential unintended side effects of price ceilings.” [David H. Autor, Christopher J. Palmer and Parag A. Pathak, Cato Research Briefs in Economic Policy]

  • Did feds try to pass off bogus paperwork in Maryland forfeiture case? [Van Smith, my two cents at Free State Notes, Radley Balko (and thanks for mention)]
  • “I’m not saying that warrants are completely useless.” [Ken at Popehat]
  • “Massachusetts is the only state that incarcerates people suffering from addiction who have not been convicted of crimes” [ACLU of Massachusetts]
  • “Where Would We Be If Not For Police In SWAT Gear Raiding Poker Games?” [Amy Alkon]
  • Class of federal crimes that shows the biggest racial disparity isn’t drug offenses, it’s gun offenses [Balko on Shaneen Allen case in New Jersey]
  • Our merciful laws: “I Saw a Man Get Arrested For a Sex Crime Because He Made a Scheduling Error” [Lenore Skenazy, Reason] “Sex Offender Laws Have Gone Too Far” [Matt Mellema, Chanakya Sethi, and Jane Shim, Slate]
  • Police chief seeks to arrest one of own officers on brutality charge, state’s attorney says no [Scott Greenfield; Ed Krayewski, Reason; Enfield, Ct.]

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  • “Emails show feds asking Florida cops to deceive judges by calling Stingrays ‘confidential sources.'” [Wired]
  • Trial penalty: mortgage fraud defendants in study fared far worse if they insisted on process of law to which they are notionally entitled under Constitution [Wes Oliver at Daniel Fisher's; more on joint Duquesne Law/Pittsburgh Post Gazette study from reporter Rich Lord, first, second]
  • “‘Florida’s Worst Cop’ Finally Convicted of Something, May Be Headed to Jail” [Ed Krayewski, Reason, earlier]
  • “Plans to expand scope of license-plate readers alarm privacy advocates” [Center for Investigative Reporting, earlier here, here, here, here, here] But at least our sensitive personal information will be safe with the government! [Lowering the Bar]
  • “Challenges to ‘shaken baby’ convictions mounting” [Wisconsin State Journal, earlier]
  • A Pavlik Morozov for the Drug War? “Brave” Minnesota 9-year-old hailed for turning in parents on pot rap [Minneapolis Star-Tribune, background on Soviet youth hero]
  • “Police SWAT teams in Massachusetts form private corporations, then claim immunity from disclosure laws” [Radley Balko via @gabrielroth, more from ACLU report on police militarization]

Schools roundup

by Walter Olson on February 14, 2014

  • “Attorney parents of ‘mathlete’ lose again in legal battle over right to select son’s algebra teacher” [Martha Neil, ABA Journal, earlier]
  • One reason NYC doesn’t close schools amid brutal winter storms? They’ve got a food program to run [Business Insider; James Panero, NYDN]
  • Should Gov. Deval Patrick, CNN host Piers Morgan apologize to townspeople of Lunenburg, Mass.? [Chuck Ross, The Federalist]
  • Kansas school-finance suit tests whether litigators can end-run elected officials on taxes and spending [WSJ, compare Colorado]
  • Lenore Skenazy (who’ll speak at Cato Mar. 6) on the Wellesley “Sleepwalker” sculpture flap: “Once we equate making people feel bad with actually attacking them, free expression is basically obsolete” [WSJ]
  • “School Found Liable After Child Sneaks Onto Roof And Falls” [Erik Magraken; British Columbia, Canada]
  • National Research Council issues report on Institutional Review Boards (IRBs) [Zachary Schrag first, second, third, fourth posts]
  • Vergara v. California: notwithstanding the hoopla, bringing more lawsuits might actually not be the best way to save American education [Andrew Coulson]

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It’s illegal to have an open bar at a ticketed event in Massachusetts, and if you overlook that rule the Boston cops might just show up and get you to “voluntarily” turn some of the event’s proceeds over to them. [Clark at Popehat]

  • Follow the federal funding: “Stop giving out awards for arrests” [Andrew Sullivan]
  • NYC cops shoot at mentally disturbed man, hit bystanders instead, charge him with their injuries [Scott Shackford, Popehat]
  • Electric car owner charged with stealing 5 cents worth of power [Chamblee, Ga.: WXIA, auto-plays]
  • Claims re: sex trafficking in US fast spiraling into absurdity. Keep going [Maggie McNeill, earlier] “Perverse Incentives: Sex Work and the Law” [Cato Unbound symposium] “California to Open Victim Compensation Funds to Prostitutes” [Shackford]
  • Illegal ticket quotas at the LAPD, inmate beatings at the county sheriff’s jail: Los Angeles policing hit by multiple scandals [L.A. Times: editorial on charges against 18 sheriff's deputies, LAPD ticket quota]
  • Massachusetts crime lab test faker Annie Dookhan gets 3-5 year sentence [ABA Journal]
  • “Overcriminalization in the states” [Vikrant Reddy, Texas Public Policy Foundation, draft; related Mother Jones] Conservatives call for reforms in New Mexico justice system [Rio Grande Foundation via @PatNolanPFM]
  • Also: “Chief Judge For 9th Circuit [Alex Kozinski] Cites ‘Epidemic’ Of Prosecutor Misconduct” [Radley Balko]

Medical roundup

by Walter Olson on November 27, 2013

  • “In a nationally representative sample, higher patient satisfaction was associated with…increased mortality.” [White Coat/BirdStrike]
  • Low premiums! Few glitches! Larger states “working faithfully to implement the law with as few glitches as possible”! New Yorker’s Oct. 7 “Talk of the Town” on ACA’s smooth launch is a retrospective hoot;
  • Massachusetts Nurses Association goes all Venezuelan on hospital governance [Ira Stoll]
  • “Can a healthcare provider make an arbitration agreement with patients for resolving future malpractice disputes?” [Alex Stein]
  • “FDA Proposal To Curb Painkiller Overdose Deaths Would Add Burdens For Pain Patients” [Radley Balko]
  • Georgia DUI expert in hot water [PennLive] “Deconstructing the mechanical engineer” [Manhattan; Eric Turkewitz]
  • “FDA Suspension of Ponatinib: Serious Problem, Wrong Solution” [Richard Epstein, leukemia drug]
  • “Missouri Lawmakers Override Veto to Enact Good Samaritan Law” [Michael Cannon, Cato]

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“The new law, which went into effect March 1, 2012, was hailed as the most dramatic reform in family law in decades and as a model nationwide, with alimony based on need. Unanimously approved by the Massachusetts Legislature, it curbs lifetime payments and sets specific time limits on alimony for marriages of 20 years or less.” So is it working? Bizarre cases and seemingly unreasonable spousal burdens persist: “the law, while a clear improvement, hasn’t been the hoped-for panacea.” [Bella English, Boston Globe]

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Medical roundup

by Walter Olson on October 25, 2013

  • Sen.-elect Cory Booker (and Mayor Bloomberg too) on liability reform and fixing health care [NJLRA] How plaintiff’s lawyers get around caps [Alex Stein, Bill of Health] Missouri protects health volunteer workers [John Ross]
  • Like an Ayn Rand novel: Massachusetts ballot initiative pushes confiscation of private hospital profits [Ira Stoll, NY Sun]
  • Advice: plan now to lower your 2014 income to get valuable ObamaCare subsidies [San Francisco Chronicle]
  • Medicare comes off poorly: “Quality Of Care Within Same Hospital Varies By Insurance Type” [Tyler Cowen]
  • Revisiting a panic over alleged mass drug injury: “Avandia’s posthumous pardon” [David Oliver, earlier here and at Point of Law]
  • Louisiana lawmakers use malpractice statute to discourage abortion [Alex Stein, Bill of Health]
  • Georgia committee looks at plan to replace med-mal suits with administered compensation [Georgia Report via TortsProf, Daily Report Online (constitutionality), Insurance Journal]
  • Uwe Reinhardt on professional licensure and doctors’ monopoly [David Henderson]

“A federal appeals court has shot down a Massachusetts consumer protection case against two doctors, a medical journal and its publisher over an allegedly flawed article cited by defendants in birth-injury medical malpractice cases. That means plaintiffs’ attorneys will have to challenge the article’s validity in each case in which the defense wishes to cite it.” The First Circuit did not reach the issue of constitutional free speech, but upheld a lower court’s ruling that the plaintiff had not shown adequately that expert testimony reliance on the allegedly faulty article had resulted in the loss of the litigation in question. [Sheri Qualters, NLJ] Earlier on A.G. v. Elsevier here.

Zero tolerance strikes again, this time at North Andover High School in Massachusetts [Jenny Erikson, CafeMom; Jason Bedrick, Cato]

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A plaintiff’s lawyer is suing a medical journal and two doctors for publishing a case report that makes it harder to win some birth-injury lawsuits.

Here are the details, as reported by Sheri Qualters of the National Law Journal. Some newborns are found to be suffering from brachial plexus injury, a type of harm to a child’s shoulder, arm, or hand that in a minority of cases results in permanent disability (so-called Erb’s palsy or a number of related conditions). A large volume of birth-injury litigation goes on as a result, in part because courts have tended to accept the idea that the only medically recognized cause of those conditions in newborns is excessive or traumatic use of physical force by clinicians (“traction”). In 2008, however, the American Journal of Obstetrics & Gynecology published a case report of a delivery in which an infant was found to be suffering such injury although the physician by her own account had not applied any excessive traction during the birth. If instead natural forces of labor could cause the dislocation resulting in the condition, many lawsuits might rest on shakier ground. Since then, defense lawyers have cited the report — by Henry Lerner of Harvard Medical School and Eva Salamon of the Bond Clinic in Winter Park, Fla. — in litigation.

A Boston lawyer who claims to have debunked the Lerner-Salamon case study has proceeded to sue its two authors, Elsevier — which publishes AJOG and many other medical and scientific journals — and Dr. Salamon’s clinic for publishing and refusing to retract it. The damages are said to be $3 million each to two families of infant plaintiffs whose lawsuits did not succeed allegedly because of the case report. The lawsuit invokes a Massachusetts consumer protection law which allows treble damages, and also asks for a court order forbidding the report to be entered as evidence in future litigation. A trial court dismissed the case, in part on the grounds that the plaintiffs had not shown that the article was a material cause of the families’ failure to prevail in the suits. Now the case is on appeal to the First Circuit, where defense lawyers are arguing, inter alia, that if there are weaknesses in the article the remedy for plaintiffs is to introduce evidence to that effect to counter it in trials. “As for its own role, Elsevier argued that applying a state consumer protection law to its published material would violate its free-speech right under the First Amendment.”

First Amendment? Let’s not go to extremes. If we start applying the First Amendment, how are lawyers supposed to silence publications that inconvenience them?

Our “watch what you say about lawyers” tag — which perhaps we should rename as “watch what you say about lawyers or their cases” — is here (cross-posted at Cato at Liberty; & welcome readers from Jesse Walker, Reason, Prof. Bainbridge).

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