Promoters of the “Exxon Knew” climate denial subpoena campaign have made a point of saying they intend to repeat the playbook of the 1990s multi-state and federal tobacco litigation, this time with the energy industry and its various trade associations, allies, and non-profit/university well-wishers as targets. But what does it mean to repeat the tobacco playbook? As one who has written at length about that episode (along with various other authors including Cato’s Robert Levy, the late Martha Derthick, and Margaret Little) I can help spell out what that means. The public-sector tobacco litigation fell out of favor as a policy model because it was the scene of vast corruption fueled by the availability of billions in fees to politically favored private lawyers; because of its grotesque violations of elemental legal fairness, such as the enactment of statutes retroactively knocking out legal defenses for the state’s opponents; because of its quick-change remake of purported initial idealism into cash on the barrelhead as the primary driver of settlement; and because of its grave civil liberties violations such as the federal government’s assertion of a right to close down industry trade associations and seize their files. Are advocates of the new climate-denial litigation hoping for it to follow the same path? [Valerie Richardson, Washington Times, thanks for quoting me]
I’ve got a new piece at Ricochet on the Food and Drug Administration’s just-announced measures against vaping (e-cigarettes), which will drastically restrict and maybe even ban a popular option for smokers seeking to quit the cigarette habit. It’s not just an assault on individual choice and commercial freedom — it could wind up killing people. Read it here.
Relatedly, Andrew Stuttaford thinks I am too kind in describing CDC director Thomas Frieden as in denial about the prospective health benefits when smokers switch to vaping. And thank you to Andrew for describing Overlawyered as “must-read”.
P.S. Faced with two options on how to regulate premium cigars, FDA chose the harsher, of course [HalfWheel, Jacob Grier (“The market for cigars is about to become a lot less diverse and a lot more boring.”)]
More: I’ve got a piece up at Cato now on winners and losers from the FDA’s move. Plus, a new Jacob Sullum column: “The FDA’s deadly e-cigarette regulations.” And a Washington Post editorial defends the agency’s action on a for-the-children rationale, yet says not a word about the precipitous plunge in youth smoking rates and only refers in passing to the issue of harm reduction.
- Government (including the writers of school lunch regulations) has pushed us toward a less healthy diet, part 73: the case for full-fat milk is looking stronger than ever [Time]
- “Obama’s latest food crackdown: Salt” [Helena Bottemiller Evich, Politico]
- Paternalist objections to the assumption of risk doctrine, and some answers [Avihay Dorfman via Benjamin Zipursky]
- Really, what harm can another cigarette tax hike or two do? (map: “Prevalence of illicit tobacco in 2013,” Francesco Calderoni) Tobacco is human rights issue, claims a Georgetown Law center on health and law;
- Vaping as dangerous as smoking? Really? Jacob Sullum challenges Dr. Margaret Cuomo;
- Australian physicians group urges drastic new restrictions on alcohol access, including higher purchase age, 0.0 blood alcohol driving limit, “interventions” for pregnant women [Sydney Morning Herald]
“Bad news for Pinocchio and Cruella De Vil.” The ever-meddlesome World Health Organization “would like to see all films that feature smoking given an adult rating.” That would exclude kids from many of the kid-oriented classics of the past, from Alice in Wonderland (hookah-smoking caterpillar) to Peter Pan (Captain Hook), to say nothing of more recent films such as “Lord of the Rings (Gandalf and his pipe) or X-Men (Wolverine and his cigar)” [The Guardian; Brian Doherty]
Owner Paul North of J.B. O’Reilly’s, a popular Irish pub in a suburb of Perth, Western Australia, “could face prosecution or hefty fines” after Health Department inspectors discovered at his business a display of tobacco advertising, which is now banned there. The advertising in question? “Antique signs and memorabilia, including a number of collectable tobacco signs dating back more than 120 years,” although “most of the brands [are no longer] on the market and J.B. O’Reilly’s [does not sell] any tobacco products.” [Brisbane Times] Update: bar wins reprieve after provincial premier overrides health department directive.
- Cross-examination of Mr. Hot Yoga left jury steamed, especially when it came to explaining the luxury cars [Lowering the Bar; more on Bikram Choudhury litigation]
- Forty-nine (!) Georgia corrections officers accused of taking bribes, drug trafficking [WXIA Atlanta; compare Baltimore jail guards scandal]
- More reactions to Justice Scalia’s death: Lee Liberman Otis, Joseph Bottum, Emily Zanotti, David Wagner/Ninomania. His legacy on the Fourth Amendment [Jonathan Blanks, Cato] On canines in the curtilage and the Bill of Rights more generally [Jacob Sullum] Labor and employment law bloggers on his passing [Jon Hyman] Immune to internationalist argle-bargle, Scalia was actually one of SCOTUS’s more cosmopolitan members [Julian Ku/Opinio Juris]
- Los Angeles joins San Francisco and Boston in banning chewing tobacco in Dodger Stadium and every other park and stadium in the city, because it can [Curbed LA]
- “They are both highly educated attorneys” which means they should have known better than to launch that lurid plot to plant drugs on the rival PTA mom [Washington Post]
- To get a cosmetology license in Ohio, you’ll need to undergo training in spotting signs of human trafficking [Elizabeth Nolan Brown/Reason; earlier on hair and beauty professionals as informants]
- “British teenager creates robot lawyer to help people with their legal queries” [Mashable]
- Judge Jed Rakoff reviews new book by Columbia lawprof John Coffee on future of class actions [New York Review of Books]
- About that “vaping could cause popcorn lung” scare: “All conventional [cigarette smoke] contains… levels of diacetyl… a lot higher than those produced by e-cigarettes.” [Michael Siegel]
- A peek inside Kinder Surprise eggs, global candy favorite that cannot lawfully be brought into the U.S. [Business Insider, earlier]
- Man’s suit against New York’s Metropolitan Museum of Art as “too white” raises eyebrows [New York Post, ArtNet]
- Courageous: in Saudi Arabia, lawyer Waleed Abulkhair, who has represented blogger Raif Badawi, imprisoned for doing his job [Scott Greenfield]
- Lawyer’s advice: bosses face legal risk if they let their employees join in #ElderlyChristmasSongs Twitter levity [Jon Hyman]
- Current food labeling standards “provide a big nudge for people to eat less saturated fats and more carbohydrates,” contrary to what many doctors now advise [Ike Brannon, Cato]
- Availability of Uber and Lyft at LAX airport tied up in lawsuits including one filed under CEQA, the California environmental-review law often used tactically to delay projects [Los Angeles Times]
- Twenty years after his classic contrarian article on recycling, John Tierney returns with another close look at its pros and cons [New York Times] Quit scapegoating plastic bags, they carry enough weight as it is [Katherine Mangu-Ward, Reason, related]
- California class action: Reynolds should have disclosed formaldehyde in vaping [Winston-Salem Journal] Authors of widely noted New England Journal of Medicine formaldehyde/vaping paper got “philanthropy to support research” from two big-league trial lawyers [NEJM paper, disclosure form, Joseph Nocera January, related April, August and recent New York Times columns, Michael Siegel]
- Federal court blocks EPA’s hotly disputed Waters of the United States (“WOTUS”) rule [Jonathan Adler; National Wildlife Federation (pro-rule); Todd Gaziano and M. Reed Hopper, PLF (against), American Farm Bureau Federation (same)]
- Environmental law firm intervenes in Louisiana governor’s race to tune of $1.1 million [Greater Baton Rouge Business Report]
- Same state: “BP oil spill settlement to reimburse millions Louisiana paid to politically connected law firms” [Kyle Barnett, Louisiana Record]
- Government subsidies for rebuilding hurricane-prone areas disproportionately aid the wealthy [Chris Edwards, Cato]
I’m interviewed at Vermont Watchdog about the truly terrible idea of aiming a civil RICO/racketeering action or investigation against the forces of “climate denial” over wrongful advocacy. The notion seems to have some well organized friends, including Sen. Sheldon Whitehouse (D-R.I.) and, more recently, twenty scientists who recently signed a letter calling for such a probe. “I have no idea how it affects the First Amendment” says one of the letter’s signers, a Vermont scientist, according to a companion report. I should note that when I speak of RICO in the interview transcript, I am referring to the civil-litigation side of the law (“civil RICO”) as distinct from the law’s other wing, “criminal RICO.”
I note, and reject, the idea that the First Amendment protects only truthful speech and thus has no application here because climate skepticism is false. (As Cato and many others argued in last year’s Supreme Court case of Susan B. Anthony List v. Driehaus, controversial speech need not be true to be protected, and in practice an “only truth has rights” rule would give the state a stifling power to punish advocacy in debates that it considers settled.) In substantial part, I note, debate in Washington (and not just in Washington) proceeds by way of advocates’ deployment of half-truths, selectively marshaled data, scientific studies with agendas, and so forth. It is common for both sides to use these techniques. The same techniques are also accepted as standard currency within the adversary process itself, in which the law takes such pride, which makes it particularly absurd to propose defining it as unlawful racketeering to “use dubious information to advance a cause.”
Among those promoting this bad idea: BoingBoing, often regarded as a pro-free-speech site.
P.S. Adapted together with an earlier post into one at Cato at Liberty.
- Study hyped as showing vaping serves as gateway to smoking doesn’t actually show that [Jacob Sullum]
- Your guano ticket to land-based wealth: 1856 law on bird droppings can help you claim an island [Mark Mancini, Mental Floss]
- Dignity of the bench: “Judge lied about claimed toilet-lid attack outside courthouse, jury finds” [ABA Journal; Waterloo, N.Y.]
- Someone’s using someone: “Providence using plaintiffs bar to become player in antitrust cases” [Jessica Karmasek, Legal Newsline, related]
- Competitive Enterprise Institute picks what it considers the nation’s six worst state AGs, most names are familiar to our readers [Hans Bader/CEI, more, full report in PDF, and thanks for link]
- “Frivolous Serial Pro Se Litigant Upset Journalists Portrayed Him As A Frivolous Serial Litigant” [Tim Cushing, TechDirt]
- Model of arbitration in Njal’s Saga: binding, provided it roughly tracks outcome of averted violence [Tyler Cowen]