- “The makers of smokeless tobacco products like to claim that their products are safer than cigarettes.” Hey, New York Times, that’s ’cause it’s true! [Jacob Sullum]
- New York Attorney General Eric Schneiderman pursues high-profile case against Standard & Poor’s, accepts $50K contribution from CEO of another credit rating firm [Richard Pollock/Daily Caller, some background]
- Megan McArdle on child support and the difficulty of replacing social norms with law [Bloomberg View, my recent Cato post and podcast]
- “Wisconsin Chief Justice Shirley Abrahamson should drop her lawsuit” [Milwaukee Journal Sentinel editorial, earlier; AP (federal judge declines to block law’s implementation while suit is pending)]
- CVS opposes certification of securities class action, saying government pension managers filing it were influenced by political donations from plaintiff’s law firm [Law360, reg]
- “Has Conley v. Gibson really been overruled? (And did the Fourth Circuit just tee up the next big SCOTUS case on pleading?)” [Adam Steinman, Civil Procedure Blog, arguing from premises different from mine, on Fourth Circuit’s decision in McCleary-Evans v. Maryland Department of Transportation]
- The Maryland knife law angle in the Freddie Gray story [Patrik Jonsson, Christian Science Monitor; my post at Free State Notes]
Actual cigarette smoking among teens, the kind that requires inhaling carcinogenic products of combustion, is down a startling 25 percent in one year and nearly 42 percent since 2011. The reason is the rapid substitution of vaping or e-cigarettes, which hold singular promise as a harm-reduction measure for those drawn to the nicotine habit. Great news, right? Not if you listen to Thomas Frieden of the Centers for Disease Control, who’s doing his best to disguise good tidings as bad so as to stoke the officially encouraged panic about vaping. New York Times columnist Joe Nocera nails Frieden on the issue [h/t @jackshafer], providing a model of appropriately skeptical press scrutiny of someone who hardly ever gets subjected to that. More on Frieden; David Henderson on how FDA hostility to vaping could slow the shift from more-toxic alternatives; related, Greg Gutfeld on California ads trashing e-cigs.
P.S. Andrew Stuttaford thinks Frieden’s not in denial, he knows better.
Lawyers Brendan and Nessa Coppinger moved into their row house in Washington, D.C.’s Capitol Hill neighborhood last September. They have now gotten a judge to agree to a temporary restraining order prohibiting their neighbor, Edwin Gray, from smoking or allowing anyone to smoke on his property. The Coppingers say the smoke is getting onto their premises through openings between the connected structures and “is harming them and their children”; they also want cash damages. The Gray family has owned the house next door for 50 years. [AP/ABC13 via ABA Journal; Washington Post]
Benjamin Freed at Washingtonian was kind enough to quote me at length making several points about this and similar litigation: 1) it would have been thrown out over most of the course of legal history because courts insisted that nuisance and similar claims (in this case couched as “negligence, nuisance, and trespassing”) exceed a de minimis standard and, in a claim for damages, required proof of actual harm going well beyond “you hit me with a molecule and that could kill me”; 2) smoking is uniquely disapproved nowadays which means some courts are willing to entertain de minimis claims that they would not for other common neighborhood nuisances; 3) if carcinogenic smoke drifting across property lines is to be stopped, both backyard grills and barbecues and common fireplaces are in trouble, at least if courts behaved logically — a very big if, of course. (It should be noted that the lawsuit includes some claims — such as that an unrepaired chimney at the Grays’ is contributing to the smoke problem — that might fit more readily into traditional legal categories.)
The temporary court order, incidentally, also bars the Gray family from allowing any smoking of now-legal marijuana in their house, which prompts this additional thought:
“It does make you wonder why conservative opponents of marijuana would bother to fight legalization in DC when instead they can let it go through and get rich suing over it,” Olson says.
Whole thing here.
Maybe I’m too cynical, but it always struck me that in proposals to ban vaping the supposed risks to bystanders were just a pretext anyway. “A new study of leading American and British brands, reported in Regulatory Toxicology and Pharmacology, confirms [earlier reports of low sidestream exposures], finding that the levels of potentially problematic substances in e-cigarette aerosol [reaching nearby persons] are about the same as those detected in ambient air.” [Jacob Sullum; recent ban in Montgomery County, Maryland]
As one door (Cuban trade) opens, another (hostile Washington regulation) closes. [Jim Bovard]
- Bi-counsel-ar? “Lawyer Defending Congressman’s Wife in Bigamy Case Accuses Client of Having a Second Lawyer” [Slate]
- “Why tort liability for data breaches won’t improve cybersecurity” [Stewart Baker]
- Pennsylvania passes a new gun law, and suddenly liberal standing with attorney fee shifting stops being the progressive position [Harrisburg Patriot-News]
- “Letting a case die like a pet rat forgotten in the garage” [Ken at Popehat on Todd Kincannon challenge to South Carolina state bar discipline threats]
- Getting to it late: hour-long Cato podcast with Randy Barnett on his book Structure of Liberty including Aaron Ross Powell, Trevor Burrus;
- Once a fun party town, New Orleans now will ban vaping in private clubs and while waiting in line at drive-throughs [Christopher Fountain, Ronald Bailey on vaping bans and public health] More: Bailey on exaggeration of risks, Jacob Sullum on California proposal;
- Colorado legislature looks serious about tackling liability reform [Denver Business Journal]
Last month the Cato Institute hosted a panel celebrating Repeal Day
with me, alcohol policy expert Michelle Minton of the Competitive Enterprise Institute, Stacia Cosner of Students for Sensible Drug Policy, and Cato Digital Marketing Manager Kat Murti as moderator.
On December 5, 1933, the 21st Amendment to the Constitution was ratified, supposedly ending our nation’s failed experiment with prohibitionism. Yet, 81 years later, modern-day prohibitionists continue to deny the laws of supply and demand, attempting to control what individuals can choose to put into their own bodies….
Some links related to the discussion:
- All the panelists quoted from Daniel Okrent’s excellent history of Prohibition, Last Call. You can find out more about the book at the author’s site.
- I quote from a speech by the late Christopher Hitchens delivered ten years almost to the day before our panel. It is excerpted in this David Boaz post.
- Radley Balko wrote a 2003 Cato Policy Analysis, “Back Door to Prohibition: The New War on Social Drinking“. More: The federal Centers for Disease Control, as I noted, has been an agency of choice for public health campaigners because of its legacy of scientific credibility, yet this credibility is itself put increasingly at risk as the CDC lends its name to propaganda. Jacob Sullum provides examples from the agency’s elastic application of the term “binge drinking” to the trouble it seems to have acknowledging that minor alcohol consumption does not seem to correlate with poor health outcomes;
- As I mention, the Prohibition episode was important in eroding constitutional protections against various law-enforcement tools, especially search and seizure, the law being inherently aimed at contraband goods. The same is true of the nascent Drug War undertaken following the Harrison narcotics act of 1914. You can read about one of the resulting Supreme Court cases here.
- The role of exorbitant cigarette taxes in contributing to New York’s giant black market in cigarettes came to wider public notice following the police custody death of Eric Garner on Staten Island; more here, here, etc. The New York Post reported that Mayor Bill de Blasio ordered the city law department to refrain from filing an intended press release over a would-be landmark suit filed over untaxed cigarettes the week of the Garner grand jury decision, because it interfered with City Hall’s efforts to downplay the role of the tobacco black market.
Lists of lists, if not indeed lists of lists of lists:
- Lenore Skenazy picks worst school safety overreaction cases of the year [Reason] and worst nanny state cases [Huffington Post]
- Radley Balko, “Horrifying civil liberties predictions for 2015”, and you won’t need to read far to get the joke [Washington Post]
- Feds probe NY Speaker Sheldon Silver over pay from law firm — not his big personal injury firm, but an obscure firm that handles tax certiorari cases [New York Times; our earlier Silver coverage over the years]
- “Doonesbury” Sunday strip gets filed 5-6 weeks before pub date, so if its topicality compares unfavorably to that of Beetle Bailey and Garfield, now you know why [Washington Post and Slate, with Garry Trudeau’s embarrassing excuses for letting papers run a strip taking the Rolling Stone/U. Va. fraternity assault story as true, weeks after its collapse; Jesse Walker assessment of the strip twelve years ago]
- Jim Beck’s picks for worst pharmaceutical law cases of the year [Drug & Device Law]
- “The Ten Most Significant Class Action Cases of 2014” [Andrew Trask]
- Washington Post calls for steep cigarette tax hike in Maryland, makes no mention of smuggling/black market issue so visible in New York [my Cato post]
Eric Garner, asphyxiated during his arrest on Staten Island, had been repeatedly picked up by the NYPD for the crime of selling loose cigarettes. Washington Examiner:
The crime of selling “loosies” was not considered a serious one in the past. Many corner stores in New York City once sold them quietly upon request. But former Mayor Michael Bloomberg’s cartoonish anti-tobacco crusade changed that and everything else. Smoking in public places was banned. Punitive taxes and a legal minimum price of $10.50 were imposed in an effort to push prices ever-upward, so that a brand-name pack of 20 cigarettes now costs as much as $14 in New York City.
As a result, the illicit sale of loose and untaxed cigarettes became more commonplace.
I noted at yesterday’s Repeal Day panel at Cato that according to figures last year, New York’s unusually high cigarette taxes had brought it an unusual distinction: an estimated 60 percent of consumption there is of smuggled or illegal cigarettes, much higher than any other state. Another way to think of it is that New York has moved closer to prohibition than to a legal market in tobacco. [earlier 2003 Cato study]
In his history of Prohibition, Last Call, Daniel Okrent cites (among many other law enforcement misadventures) the fatal shooting of Jacob Hanson, secretary of an Elks lodge in Niagara Falls, New York, in a confrontation with alcohol agents — though Hanson had a clean record and was not carrying alcohol. At the time, many saw Hanson’s death as reflecting poorly on the Prohibition regime generally. For some reason, though, Senator Rand Paul (R-Ky.) has drawn fire from some quarters for making a parallel observation about Garner’s death. [BBC; note however that while Garner’s frictions with the local NYPD seem to owe much to his repeated cigarette arrests, the proximate event leading to his arrest seems to have been his attempt to break up a fight]
“Fox Business Network’s John Stossel interviews US Consumer Coalition’s Brian Wise and Kat O’Connor, owner of TomKat Ammunition LLC, on the Justice Department’s Operation Choke Point.” The Gaithersburg-based ammo seller was cut off from credit card processing services and suspects that the federal Choke Point program was the reason. [cross-posted from Free State Notes; earlier on Operation Choke Point].