Archive for July, 2004

Alcohol Prohibition v. Drug Prohibition

While national alcohol prohibition in the US is widely (if not quite universally) regarded as a failure, there remains substantial support for our current tragic folly, drug prohibition. The respective prohibitions are not identical, however, and I want to point out two ways in which drug prohibition is worse than alcohol prohibition. First, during alcohol Prohibition, purchase and (for the most part) possession of alcohol were not crimes. (People often seem surprised to learn this these days, as if the drug war has made a firm link in their minds between prohibition and the criminalization of possession and purchase.) In other words, what we refer to as a “decriminalization” regime with respect to drugs today is pretty much what we had with alcohol prohibition: drug prohibition is much more severe than alcohol Prohibition.

The second major difference is that alcohol prohibition was restricted to a handful of countries, whereas drug prohibition is global. As a result of the limited geographical scope, there was plenty of legally produced alcohol during Prohibition, such as that made in Canada (and then illegally smuggled into the US) by Seagrams. But more importantly, the fact that other countries had legal alcohol — and were often just as successful in reducing consumption and alcohol-related problems as the US — provided ongoing evidence of the extent to which Prohibition was a policy blunder. With global drug prohibition, we are very limited in the types of policy experiments that can be run; even in the Netherlands, marijuana is technically just as illegal as it is in the US. This helps to explain the odd “self-justifying” nature of drug prohibition. Bad outcomes under drug prohibition should tend to discredit prohibition as a policy. This is what would likely occur if there were a visible alternative policy with outcomes that were better. Instead, bad outcomes under drug prohibition are met with the logic that if there were fewer drugs, there would be fewer bad outcomes. So to reduce bad outcomes under prohibition, we need… a stronger, more committed prohibition!

Anonymous accusers (of the expert kind)

From the Chicago Sun-Times:

When a doctor is sued for malpractice in Illinois, another physician must sign a statement certifying the lawsuit has merit.

Moreover, the physician alleging malpractice must be an expert in the field. The idea is to prevent frivolous lawsuits.

But there’s a catch. The name of this expert physician is kept secret. …

When the expert’s name isn’t revealed, there’s no way for the defense to question his or her qualifications, said Robert Kane of the Illinois State Medical Society.

The plaintiff’s bar in Illinois is strenuously defending the right of their certifying experts to remain anonymous, saying they might face retaliation if they revealed their identities. However, it seems the current policy also has the convenient effect of insulating the lawyers themselves to some degree from accountability for misconduct:

Dr. William Sullivan, an emergency room physician at Advocate South Suburban Hospital, believes a certifying physician should not be able to hide behind anonymity. Sullivan once was sued at another hospital, along with about 10 other doctors, by the family of a woman who died from car accident injuries.

Sullivan said he was named as a defendant, even though his only involvement in the case was to insert an IV line. When the case against him was dropped, Sullivan, who is also an attorney, turned around and sued the woman’s law firm for “malicious prosecution.”

Sullivan also sued “physician John Doe,” the doctor who certified Sullivan had committed malpractice. Sullivan said he needed to interrogate Dr. Doe in order to prove the case against him had been frivolous. But Sullivan never was able to learn Dr. Doe’s identity, so he had to drop his case.

(Jim Ritter, “Doctors seek to lift veil on malpractice cases”, Chicago Sun-Times, Jul. 5 (link no longer online except as $ archives))(& letter to the editor, Jul. 26).

Alien Tort Claims Act

…discussed by Jim Copland at Point Of Law, here and here. Also discussion of tobacco litigation (here and here), asbestos bankruptcies and Wal-Mart. And of course my discussion with Michael Krauss of whether gun-suit pre-emption by Congress is compatible with the Constitution continues on the featured discussion page, with one more day left to go before we wrap things up.

A Different Sort of Zero Tolerance Tale

Ambulance drivers dealing with emergencies have been known to put on their lights and sirens, followed by occasional speeding and the running of red lights. Police generally do not pull over the ambulances and fine the drivers who are behaving in this fashion. But police officers have human discretion, while cameras that automatically record speeding or red-light running offenses do not.

In Britain, where speed cameras are pretty common, ambulance drivers have been receiving hundreds of speeding tickets each week. It should come to an end now, at least in England and Wales, because at the beginning of July the police reached an agreement with the health minister calling for a cessation to the tickets — as long as the ambulance’s blue emergency lights are visible in the photograph. The agreement was spurred by a particularly notorious case, as reported in this article from the Guardian on July 3: “Pressure for a change to the penalty procedure mounted last year after Mike Ferguson, a Bradford ambulance driver, was charged with speeding as he delivered a liver for a transplant operation in Cambridge.”

So, man triumphs over unfeeling machine — but maybe we shouldn’t be too pleased with ourselves. In the pre-camera days of the 1960s, British law against red-light running did not include an exception for emergency vehicles. As with the recent circumstances with the cameras, the 1960s situation placed drivers of fire engines in a quandary: their licenses (and hence livelihoods) were at risk, while some chief officers of fire departments mandated that their drivers ignore red lights. An exception to the red-light law was finally carved out for fire engines and other emergency vehicles, first in the common law — in 1971! — and later by an Act of Parliament.

Calif. state senator Joe Dunn

He made a fortune suing doctors, then moved up to the California State Senate as a Democrat representing Orange County communities including Anaheim, Santa Ana, Fullerton and Garden Grove. Now he’s one of the chief guardians of trial lawyer interests in Sacramento. Will he run for state attorney general in 2006? (Michael A. Glueck, “The runaway trial lawyer”, Jewish World Review, Jul. 9). Dunn was chief sponsor of the first-in-the-nation bill signed into law by Gov. Gray Davis last year, authorizing lawyers to file private damage suits over labor code violations; see Oct. 20.

Vice Law Revolutions

Britain is rethinking its strategy towards regulating a variety of vices, from gambling, to marijuana, to alcohol, to prostitution. In all of these areas, changes under consideraton are quite far-reaching, almost revolutionary. (A smaller change, concerning an issue raised here yesterday, is this week’s announcement by the British communications regulatory agency of its intention to curtail television alcohol advertising that might appeal to underage drinkers in a variety of ways.)

Revolutions in vice regulation are not uncommon. A Chicagoan who turned 100 years old today would have lived through times when heroin was legal, prostitution was legal, marijuana was legal, cigarettes were illegal, alcohol was illegal, novels like Lady Chatterly’s Lover were illegal, state lotteries were non-existent, out-of-wedlock sex that involved crossing state lines was illegal, etc. There is no reason to believe that our current legal line drawing in the vice world will prove any more stable.

Vice Squad has looked at some of the pressures for vice laws (here) or their associated punishments (here) to change.

Obese Arkansas Schoolkids

You probably heard a couple of months ago that the state of Arkansas decided to start providing the parents of school children with “report cards” on their kids’ weight. School children will have their “Body Mass Index” (BMI) measured at school, and the results sent home. What I just learned today, from this MSNBC story, is where the funding originated for the obesity report cards: “The BMI test came into existence as a result of a cash windfall to the state from a tobacco lawsuit settlement tagged to fund public health programs.”

It’s particularly ironic because decreased smoking, apparently, is one of the major factors promoting the American obesity epidemic.

Vermont and Alberta radio

On Monday I was again a guest on Laurie Morrow’s True North Radio show reaching listeners around Vermont and nearby states. And yesterday I was a guest on QR77 in Calgary, Alberta, on the afternoons with Dave Taylor, with guest host Rob Breakenridge substituting for Taylor. To book a broadcast interview on my book The Rule of Lawyers, email me directly or contact Jamie Stockton at the St. Martin’s/Griffin publicity department: 212-674-5151, ext. 502.

More guns, more federalism

My friendly debate at PointOfLaw.com with Prof. Michael Krauss of George Mason University on federalism and the gun pre-emption bill has now gone through two rounds and has attracted notice from Ramesh Ponnuru at National Review Online and from Jacob Sullum and Nick Gillespie at Reason “Hit and Run”. Check it out and you’ll learn more about the federal Commerce Clause, states’ tendency to engage in “beggar-your-neighbor” strategies on product liability, and the question of whether the failure of most of the municipal gun suits means we can relax about a threat to Second Amendment liberties.

“Aspiring doctors with learning disabilities file bias suit”

“Would-be California medical students with learning disabilities filed a discrimination suit Monday saying their prospects of becoming doctors are being thwarted because they aren’t given enough time on the medical school entrance exam.” Disability Rights Advocates in Oakland is backing the suit, which demands extra time and a distraction-free setting. (Bob Egelko, San Francisco Chronicle, Jul. 20). For more on the war on entrance exams and other educational admission standards, see Nov. 13 and links from there. More: RightRainbow. (& letter to the editor, Jul. 26)