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New York

Medical roundup

by Walter Olson on July 9, 2014

  • Congress responds to Veterans Administration health care scandal by throwing huge new sums at care [Nicole Kaeding, Chris Edwards, Cato] “Every Senior V.A. Executive Was Rated ‘Fully Successful’ or Better Over 4 Years.” [NYT via Instapundit] “VA Hospitals aren’t included on the federal government’s Hospital Compare web site” [White Coat]
  • Canadian judge quashes as vexatious suit over non-admission to medical school [Winnipeg Free Press]
  • Brain-damaged child cases: “14.5 Million Reasons Physicians Practice Defensive Medicine” [White Coat, Cleveland] “North Carolina Jury Deadlocks in John Edwards’ Malpractice Trial Against Doctor” [Insurance Journal, emergency medicine]
  • “Medical Licensing in the States: Some Room for Agreement — and Reform” [Charles Hughes, Cato]
  • “NY Launches Statewide Med Mal Settlement Program” [NYDN via TortsProf]
  • “Unlucky Strike: Private Health and the Science, Law and Politics of Smoking” [John Steddon and David Boaz, Cato program] Here’s the long-awaited segue to complete prohibition: British Medical Association recommends banning tobacco permanently for persons born after 2000 [WaPo]
  • Sneaky: California ballot language undoing MICRA liability limits “buried in an initiative titled The Troy and Alana Pack Patient Safety Act of 2014.” [Yul Ejnes, KevinMD]

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We warned that there were First Amendment problems with the overbreadth of these legal proposals, and the New York Court of Appeals sees things the same way. [People v. Marquan M.; Volokh] Two dissenters would have cut down the scope of the law significantly and deemed the remainder constitutional, but the majority invalidated it in its entirety, whether applied to minors or persons of full legal age. We’ve earlier criticized cyber-bullying enactments and proposals in Maryland, Virginia and elsewhere.

In a 4-2 decision, New York’s highest court agreed with two lower courts that New York City’s attempted ban on sugary drink portions over 16 ounces exceeded the powers of the city’s Department of Health. [Bloomberg News coverage]

That’s exactly in line with what I wrote at earlier stages of the case. At the time, some national commentators did not seem to have checked out the actual reasoning of Judge Milton Tingling’s decision, which rested squarely on a distinctive 1987 New York precedent called Boreali v. Axelrod which had struck down the state health department’s attempt to regulate smoking in public places as beyond its properly delegated authority. The soda case was (as they say) on all fours with Boreali, and although the Court of Appeals could have overturned Boreali, as some academics urged, or found grounds to dodge its effect, as the two dissenters did, the court instead chose to apply the precedent as it stood. That confirms that the Bloomberg-appointed Board of Health, in its eagerness to assert powers not rightly its own, had casually broken the law.

One of the two dissenters was Chief Judge Jonathan Lippman, the latest of many indications that he is inclined to pull the Court of Appeals away from many of the positions and habits that have given it a centrist reputation among state courts.

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We’ve tracked (especially by way of the Westchester County, N.Y. controversy) the ambitious efforts of the federal Department of Housing and Urban Development to grab more control over local governments’ zoning and project building decisions, in part through a proposed new “AFFH” rule (Affirmatively Furthering Fair Housing). Now the House has voted an appropriations rider cutting off funds for implementation of the new rule. [sponsor Rep. Paul Gosar (R-Ariz.), Paul Mirengoff/PowerLine, Sara Rankin/Legislation Prof (opposed), National Low-Income Housing Coalition, earlier on AFFH and on housing discrimination law generally]

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Politics roundup

by Walter Olson on April 11, 2014

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The proposal by New York state Sen. Ruben Diaz Sr., D-Bronx (earlier) is beginning to break out into wider coverage. I’m quoted in this report by Steven Nelson of US News:

Walter Olson, a senior fellow at the Cato Institute’s Center for Constitutional Studies, blogged about the bill earlier this month and tells U.S. News “people see this not just as bossy, but as sinister.”

“Imagine treating every parent in New York as though they are on probation,” he says.

Olson says the bill would force parents to “show up and be re-educated” and “lectured about the shortcomings of how they are raising their kids and be inoculated with whatever the fad of the year is.”

“If you thought the public reaction to the soda ban was big,” Olson says, “wait until you see the public reaction to telling people the government knows better than they do how to raise their kids.”

Speaking of helicopter governance, if you’re near Washington, D.C. be sure to mark your calendar for next week’s (Mar. 6) talk at Cato by Lenore Skenazy of Free-Range Kids. Details and registration here.

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Farm and food roundup

by Walter Olson on February 18, 2014

A bill introduced by three members of the New York Senate would require parents of schoolchildren to attend four workshops aimed at sharpening their “parenting skills,” as a condition for their kids’ advancing to the seventh grade. I’ve got details in a new post at Cato at Liberty (& Patheos’s Terry Firma).

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Jack Shafer has a few thoughts:

Schneiderman mustn’t neglect the product endorsement industry. Do those celebrity endorsers really love the product or service as much as they say they do? … Fake reviews on Yelp, properly considered, are Yelp’s problem, not the state of New York’s. Let the Yelp people clean up the sewer. And the attorney general? Aren’t there any genuine crimes in the state for him to investigate?

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Public employment roundup

by Walter Olson on August 14, 2013

  • “Retirement benefits cost Connecticut more than half of payroll” [Raising Hale] Jagadeesh Gokhale, “State and Local Pension Plans” [Cato] “In the report Krugman cites, the researchers note (repeatedly) that the trillion-dollar figure is very likely a dramatic understatement of the size of the unmet liability.” [Caleb Brown]
  • California: “Bill would reinstate state workers who go AWOL” [Steven Greenhut]
  • Eyebrow-raising federal salaries at unaccountable-by-design CFPB [John Steele Gordon, Commentary]
  • “North Carolina Ends Teacher Tenure” [Pew StateLine]
  • Not all states would benefit from a dose of Scott Walkerism, but Massachusetts would [Charles Chieppo, Governing]
  • “Prison Ordered to Hire Back Guards Fired over an Officer’s Murder Because Everybody Else Was Awful, Too” [Scott Shackford]
  • “New York State Lags on Firing Workers Who Abuse Disabled Patients” [Danny Hakim, New York Times] NYC educators accused of sex misconduct can dig in for years [New York Daily News]
  • “Pennsylvania’s GOP: Rented by Unions” [Steve Malanga, Public Sector Inc.] NYC’s Working Families Party expands into Connecticut [Daniel DiSalvo, same]

With enough enforcement linkage between different branches of government, do we even need a Panopticon? “Beginning this year, [New York] drivers who owe more than $10,000 in state taxes face losing their license until the debt is paid.” Does this mean persons who have fallen behind on taxes won’t be able to get to their jobs to pay off the arrears? Well, it seems “there is a ‘restricted’ license that you can apply for in the event that your license is suspended” which “would allow you to commute to and from work only.” How this is to be enforced — whether the hapless motorist will be nailed for stopping off for a loaf of bread on the way home, or venturing out for a job interview — is your guess as well as mine. [Kelly Phillips Erb, Forbes]

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Medical roundup

by Walter Olson on July 16, 2013

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When local governments lack a properly compliant attitude:

The federal monitor overseeing Westchester’s much-debated court settlement with the U.S. Department of Housing and Urban Development over affordable housing asked County Executive Rob Astorino on Wednesday to remove a news release from the county’s website, saying it contains falsehoods….

[Manhattan-based attorney James] Johnson cast doubt on whether Astorino can say whatever he wants about the controversial 2009 settlement.

During a conference call with journalists shortly before Astorino’s news conference, Johnson said the settlement calls for the county to educate the public about the benefits of integration. Astorino, on the contrary, has been antagonistic toward much of the agreement, Johnson said.

Johnson says Astorino wrongly suggests that HUD is pressing for construction of more than the 750 units of “affordable” housing specified in the settlement; Astorino responds that HUD officials keep citing a study under which a much larger number of units would be required to bring the towns into compliance. Westchester voters elected Astorino in part because of his criticism of the much-disliked deal. [Newsday, paywall; earlier here, here, here, etc.]

  • Arkansas: “‘Corruption of Blood’ Amendment Withdrawn After House Supporter Is Reminded What Century It Is” [Above the Law]
  • George Zimmerman-Trayvon Martin case heads for trial [TalkLeft, Doug Mataconis, and Richard Hornsby via Megan McArdle on evidentiary standards, earlier]
  • Is New Hampshire citizens’ group harassing town parking meter enforcers, or monitoring their work? [Union Leader, ABA Journal, Reason]
  • New York politicos quarrel over Hank Greenberg suit, overbroad Martin Act is to blame [Bainbridge]
  • Enforcement grabs higher-ups in Ralph Lauren Argentine customs bribery case [FCPA Professor, earlier]
  • Who stole the tarts? “Mom has son arrested for stealing Pop-Tarts” [Lowering the Bar; Charlotte, N.C.] Tip from Georgia cops: avoid situations where you might have to cling to hood of moving car [same]
  • “Omaha officers told: Don’t interfere with citizens’ right to record police activity” [Omaha World-Herald via @radleybalko ("Good work, Omaha.")]

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In the New York legislature, bowling alleys are hoping to win a law protecting them from slip-fall liability arising after their customers wear store-rented shoes outside the building and either slip there or track snow or other slippery matter back inside. Weather hazards have been tripping up more customers of the ordinarily indoor sport, it seems, since the state enforced a complete indoor smoking ban. The trial lawyer association is dead set against the bill; its president claims that the bill “undercuts the constitutional right to a trial by a jury” — presumably on the theory that it somehow undercuts trial by jury for a legislature to roll back any instance of liability for anyone anywhere. That’s sheer nonsense, of course — otherwise, it’d have been unconstitutional for legislatures around most of the country to have abolished the old heartbalm torts of breach of promise to marry and alienation of affection. [Albany Times-Union via Future of Capitalism] More: Lowering the Bar.

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A lawyer who’d been widely and scathingly criticized over his handling of a case — unfairly he thought — proceeded to sue bloggers and journalists for defamation, so many that the total of defendants reached 74. It’s over now, but a New York state judge declined to award sanctions, which may possibly say something about the difficulty of obtaining sanctions under today’s prevailing legal standards, especially in New York. [Tom Crane, San Antonio Employment Law Blog; Popehat ("Our legal system is so broken that it can take years to resolve even the most patently vexatious, harassing, and incompetently prosecuted lawsuits like this one.")]

P.S. “Loser pays would have been valuable here. Costs to each defendant would teach a memorable lesson.” [@erikmagraken]

By a 12-4 vote, the board of legislators of the suburban New York county has approved going to court against the federal Department of Housing and Urban Development in the long-running dispute. HUD is still insisting that the county enact a “source of income discrimination” law barring private landlords from turning away Section 8 federally aided tenants, as well as critically reexamine zoning rules in its various towns. [Peter Applebome, NYT, Journal-News, Newsday] Earlier here, etc.

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Enough that 33 states have so-called enacted At Rest laws, requiring that bottles spend time in an in-state warehouse before being sold to consumers. Although the laws limit competition, drive up prices to consumers, and make it harder to special-order less common labels, New York may join the list following generous donations to politicians from an in-state wholesaler. [New York Post] FTC attorney David Spiegel analyzed anti-competitive liquor laws in this 1985 article (PDF) in Cato’s Regulation magazine.

And: I’ve posted an expanded version at the Cato blog. (& Michelle Minton, CEI “Open Market,” who cites an informative column by Tom Wark, WineInterview.com, to the effect that the New York bill may be dead for now.) (Edited for accuracy 4/9: licensed New York wholesalers already own warehouses in both New York and New Jersey, and the bill would have protected the former from competition from the latter)

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