Scott Johnson at Power Line has a lookback-with-updates on the controversy over Minnesota CLE (continuing legal education) requirements precariously balanced between indoctrination and vacuity. “What bias does the Court seek to eliminate? If the elimination-of-bias requirement can be satisfied by courses such as ‘Understanding Problem Gambling,’ as it can, the requirement has become just one more way of making a statement while making the practice of law slightly more unpleasant than it already was or is.” We covered the issue back in 2003 (“compulsory chapel”).
Hockey gets into the act
If you actually see the surveillance camera, move on
Maurice Owens fell down dramatically in an elevator at Washington, D.C.’s Potomac Avenue Metro station, and blamed it on a banana peel. Authorities say that not only did a surveillance camera show him dropping the peel himself, it also caught him glancing up at least three times at the camera itself before the incident. [Washington Post]
Medical roundup
- “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]
We make the ABA Journal “Blawg 100 Hall of Fame”
Details here. The “Hall of Fame” began last year with 10 inductees and this year the ABA Blawg 100 competition is inducting 10 more, with us in the batch. Its description:
Whether or not you’re sympathetic to tort reform and the idea that the government overregulates, Overlawyered is a little hair-raising and eye-opening. Its stated mission is to bring to light abuses of the legal system that raise costs and inhibit justice. Acquired this year by the Cato Institute, the blog is the project of Walter Olson, a senior Cato fellow. Having celebrated its 15th anniversary in July, Overlawyered says it may be the oldest legal blog: “At least, no one seems to be able to name one that’s older.”
So far as anyone we know has been able to tell us, Overlawyered, launched in July 1999, is the longest running blog about law. From time to time the question arises whether it was the very first law blog, a question discussed at Bob Ambrogi’s LawSites (and in turn noted in an Editor’s Note at the above ABA link). It was certainly not the first regularly updated law site; there were plenty of those in 1999, such as Mark Astarita’s seclaw.com which dates back to 1995 (!). In a 2003 post Greg Siskind writes that his visalaw.com was first to adopt a blog format, citing a 1998 post (visible at Wayback Machine here) that provided regular updates on H-1B legislation over the course of a month, with older updates scrolling down the page, and which drew wide traffic. For reasons I advance at LawSites, I think a lot depends on one’s definition of what a blog is, and that’s probably not a subject we’ll all agree on soon.
Also, Overlawyered has been included in the ABA’s 7th Annual Blawg 100 this year, as often in the past. To vote for your favorites by category, click here. They’ve put us in the “Torts” category.
FDA orders 23andMe to shut down home genome test
There are so many reasons to resist the FDA on this action — really, as many reasons as there are individual 23andme users. Some of us want to seek out distant relatives and clues about national origins, or satisfy curiosity about patterns of disease in our family lines. For adoptive families, home genome testing can be hugely valuable in cases where one knows little about the medical history of an adoptee’s birthfamily. It’s our body, and our right to inform ourselves about it — or so we thought.
Some are blaming the company for rolling out the popular service in the absence of a clear regulatory go-ahead, and, in recent months, ignoring repeated signals of the FDA’s wish that it submit to comprehensive regulation that would greatly drive up the cost of its service. But other commentators have suggested that the firm has some pretty decent legal arguments that its service is not subject to regulation as a diagnostic test or “medical device” (genetic predispositions are not diagnoses). As an information-based service, it might even enjoy protection under the First Amendment. Admittedly, the company waved a red flag in front of regulators when it launched a marketing campaign that stressed the possible health benefits of knowing one’s genetic predispositions. But as Timothy Lee argues at the Washington Post:
Having more information about your health status is never dangerous by itself. It only becomes dangerous if patients use it to make dangerous medical decisions. But most dangerous medical decisions can’t be made unilaterally; they generally require the assistance of licensed medical professionals who will do their own assessment of the situation before performing procedures that could harm patients.
The FDA very likely has decent legal grounds to forbear from a crackdown should it choose to. But the key takeaway sentence from Matthew Herper’s piece in Forbes criticizing the company is: “This is not the way to deal with a powerful government regulator.” Disrespectful, anti-authority attitudes from someone an agency intends to regulate? Ask former Buckyballs CEO Craig Zucker where that gets you.
What can users, potential users, and well-wishers do?
* “First, download your 23andMe raw results now if you have them,” warns Razib Khan at Gene Expression.
* If you like signing Change.org petitions, there’s one here asking the FDA to back off.
* In a separate piece for Slate, Khan suggests where the situation might head before long: services like this can move offshore. All the relevant information consumers want from them can be delivered via the web. In the mean time a highly innovative and valuable enterprise will have been pushed out of the U.S. to some freer part of the globe, but maybe we need to get used to that happening.
And then? It may take a while before our government works up the nerve to ban mailing a saliva sample to a foreign address. Based on existing trends, I’d guess the more likely intervention, circa 2018 or so, would be for the Treasury to direct credit card companies not to process payments from U.S. residents to genome kit providers. Would we have the spirit to resist then? And if then, why not now? More: Alex Tabarrok, Slate Star Codex (by analogy, “banning people from weighing themselves without a prescription is neither clinically nor ethically sound,” although weight awareness sometimes leads patients into unwise health decisions), Nita Farahany, Brad Warbiany, earlier 2011. Alex Tabarrok’s post is especially worth reading, an excerpt:
…Indeed, genetic tests are already regulated. To be precise, the labs that perform genetic tests are regulated by the Clinical Laboratory Improvement Amendments (CLIA) as overseen by the CMS (here is an excellent primer). The CLIA requires all labs, including the labs used by 23andMe, to be inspected for quality control, record keeping and the qualifications of their personnel. The goal is to ensure that the tests are accurate, reliable, timely, confidential and not risky to patients. …
…the FDA wants to judge not the analytic validity of the tests, whether the tests accurately read the genetic code as the firms promise (already regulated under the CLIA) but the clinical validity, whether particular identified alleles are causal for conditions or disease. The latter requirement is the death-knell for the products because of the expense and time it takes to prove specific genes are causal for diseases….
The FDA also has the relationship between testing and clinical validity ass-backward. The FDA wants to say no to testing until clinical validity is established but we are never going to discover clinical validity until we have mass testing.
More: Richard Epstein/Point of Law, BoingBoing, more from Ron Bailey.
Food roundup
- “The FDA’s Ill-Conceived Proposal to Ban Trans Fats” [Baylen Linnekin] Margarine and other butterfat substitutes help in keeping a meal kosher, but FDA appears indifferent to individual preference [Ira Stoll] Can the baker fudge the formula for Baltimore’s Berger cookies? [Baltimore Sun, WTOP/Capital] Organized grocery lobby appears to be going quietly, perhaps a misguided strategy since this sets a precedent for yanking familiar ingredients off Generally Recognized As Safe (GRAS) list, and many activists would like to move on to things like sugar next [Bloomberg Business Week, Doug Mataconis/Outside the Beltway, Michelle Minton/CEI, Bainbridge] Switch to palm oil might accelerate deforestation [Scientific American]
- FDA’s regs implementing Food Safety Modernization Act could tank small farmers and other food operations, commenters write in by thousands [Baylen Linnekin, Jim Slama, HuffPo]
- Proposed Austin curbs on fast food restaurants might ensnare its beloved food trucks [Linnekin]
- Any day now FDA could issue long-awaited, highly burdensome new menu calorie labeling regs [Hinkle] Sens. Roy Blunt (R-MO) and Angus King (Ind.-ME) introduce bill to excuse grocers and convenience stories from rules and simplify compliance for pizzerias [Andrew Ramonas/BLT]
- “Panel weighs in on soda ban at law school” [NYU News covers my recent panel discussion there with Jacob Sullum and Prof. Roderick Hills, pic courtesy @vincentchauvet]
- “Organic Farmers Bash FDA Restrictions On Manure Use” [NPR via Ira Stoll]
- Nick Farr looks at NYT retrospective on the Stella Liebeck (McDonald’s) hot coffee case [Abnormal Use]
- “Sugar is the most destructive force in the universe” according to expert witness who meets with less than favorable reception in corn syrup case [Glenn Lammi, WLF]
Bogus DMCA takedown request watch
WordPress is fighting back. [its blog via BoingBoing, Popehat] Will YouTube? [Popehat re: Colorado assembly hopeful]
Update: “‘Unfireable’ NYC firefighter quits”
“The female FDNY probie who was allowed to graduate from the Fire Academy without passing a required running test has quit” after a sixth unsuccessful try to run a mile and a half in 12 minutes or less. Wendy Tapia will “return back to EMS ranks,” said a fire spokesman.
“It’s really not about her, it’s about preferential treatment,” said Paul Mannix, president of Merit Matters, a firefighter group that opposes hiring quotas. “People are encouraged that she won’t be fighting fires, not because she’s a woman, but because she couldn’t meet the standards.”
For an excerpt from my discussion in The Excuse Factory of litigation challenging timed tests for firefighters, see this 2007 post. [New York Post, earlier]
San Rafael, Calif. passes own-home smoking ban
The ban applies to privately owned homes that share a party wall with another home. [ABC News] The rationale, per city official Rebecca Woodbury:
“It doesn’t matter if it’s owner-occupied or renter-occupied. We didn’t want to discriminate. The distinguishing feature is the shared wall.” As justification for the rule, she cited studies showing that secondhand smoke seeped through ventilating ducts and walls, even through cracks [emphasis added — W.O.]. “It depends on a building’s construction,” she said, “but it does affect the unit next door, with the negative health impacts due to smoke.”
San Rafael is in affluent Marin County just north of San Francisco. Woodbury said there had been hardly any opposition to the ordinance: “We have a very low percentage of smokers in the county,” she said. On proposals in Berkeley, Calif. to ban some smoking in private homes, see this recent post.
P.S. With end-of-year donation time coming on, I won’t be writing any checks to groups like the American Lung Association that support this sort of thing. Plenty of deserving health and research charities do great work while being respectful of individual liberty and property rights.