- Pressure from HHS leads day cares to ban practice of baby-swaddling, and not everyone’s pleased about that [Abby Schachter, Reason]
- “If Big Pharma likes your healthcare plan, you can keep it” [Tim Carney]
- For “those of us with polycystic kidney disease… stringent FDA regulation seems to be taking away hope” [Bill Brazell, Atlantic] And: speaking of the FDA, “Dallas Buyers Club Is a Terrific Libertarian Movie” [David Boaz, Cato] Also: New Peter Huber book, “The Cure in the Code: How 20th Century Law Is Undermining 21st Century Medicine” [Basic/Manhattan Institute, Wired]
- $7,440 annual expected loss per hospital bed in Florida vs. $810 in Minnesota, and other med-mal loss statistics [Becker’s Hospital Review via TortsProf]
- Charge: black lung defense firm finds ways to conceal medical expert reports from adversaries [Center for Public Integrity via Joe Patrice, Above the Law]
- Prescribing drugs for off-label uses is perfectly legal, but Johnson & Johnson will pay $2.2 billion for promoting the practice [Ann Althouse]
- Jury awards $4 million legal malpractice verdict against prominent D.C.-based plaintiff’s firm [Richmond Times-Dispatch via White Coat]
- “Can You Secretly Record the Medical-Legal Exam?” [Eric Turkewitz]
“University sued in drunk-driving deaths…”
“…because housing officer didn’t report alleged domestic abuse” [ABA Journal]
Reining in patent litigation via fee shifts
Prevailing parties in patent suits can win attorneys’ fees from losing opponents in cases deemed “exceptional.” “Under the test used to identify exceptional cases, cases must be objectively baseless and brought in bad faith.” That is already a painfully narrow exception, allowing for large volumes of poorly founded litigation, but two cases before the Supreme Court this term may provide clarity on when courts can deem cases “exceptional” and suitable for a fee shift. Broader use of fee shifts — presumably by way of deeming at least some swath of losing cases “exceptional” — would be one way of addressing the patent troll problem that would not call for new legislation. [ABA Journal, related, Corporate Counsel (arguments that judiciary can deal with trolls on its own]
In other developments, the Federal Trade Commission has voted to proceed with an inquiry into the patent troll problem [New York Times] and the Government Accountability Office has released a long-awaited report on the issue [Mike Hogan and Gregory Hillyer, Legal Intelligencer]
Labor and employment roundup
- High times at the Federal Mediation and Conciliation Service [Luke Rosiak, Examiner via Jim Harper, Cato]
- 6th Circuit: In ruling company’s suit against union to be unfair labor practice, NLRB breezed past First Amendment issues [NLRB v. Allied Mechanical Services, Terry Potter/Lexology]
- “People look at me funny sometimes when I say the minimum wage law limits employee rights…” [Coyote]
- “ENDA and the Seduction of Symbolic Gestures” [Mark Lee, Washington Blade] Employers look to solve practical questions [Michigan Employment Law Connection] I’m quoted on ENDA in numerous outlets [Al Jazeera, Sydney Morning Herald, Tim Carney/Washington Examiner, more] and will be joining Ray Dunaway at 8:50 a.m. on his WTIC Hartford radio show to discuss the issue. More: ENDA explainer [Brett Kalikow, On Labor]
- If New Yorkers knew full cost of state’s scaffold law, would they demand it be fixed? [Bob Dorigo Jones]
- Disability rights group ADAPT decries DoL rule on home attendant overtime [ADAPT, Daniel Schwartz, earlier here and here]
- The Greek model of public sector employee tenure: “Nearly three years after he was convicted of murder [of the town’s mayor] and sentenced to life in prison, Savvas Saltouridis remains on the municipal payroll.” [WSJ]
NYC: “Meet the seemingly unfirable female firefighter”
“Despite failing a required FDNY running test five times, Wendy Tapia was allowed to graduate from the Fire Academy and become a firefighter. On Dec. 2, she is taking the test for an unprecedented sixth time.” [New York Post] In The Excuse Factory, I told the story of how prolonged litigation from civil rights groups claiming to speak for the interests of female applicants had severely eroded testing for strength, endurance and agility among many urban fire, police and trash services.
UNITE HERE v. Mulhall
Sean Lengell of the Washington Examiner quotes me in a preview of the upcoming Supreme Court case about whether the provision of federal labor law barring employers from giving a labor union a “thing of value” prohibits “neutrality agreements” in which an employer provides its employee lists or free office space to union organizers. A broad ruling to that effect would wrest a major weapon away from unions, which is one reason I’m doubtful it will happen:
“Those that would like to rein in this type of union agreement, whether it be business or conservatives, shouldn’t get too overconfident,” said Walter Olson, a senior fellow at the libertarian-leaning Cato Institute. “Getting the justices to see the logic of Mulhall’s argument is one thing; getting them to act and sign a decision [in his favor] is something else.”
Olson added the justices may be looking for a way out of having to make a definitive ruling.
“I think the court’s instincts are not to pull too hard at the columns of the temple on labor law, because they’re not sure where it’s going to fall,” he said.
Update: reactions to Mulhall oral argument from Jack Goldsmith (and more), Ben Sachs, Cato’s Trevor Burrus, and William Gould/SCOTUSBlog.
November 11 roundup
- Incoming Australian attorney general: we’ll repeal race-speech laws that were used to prosecute columnist Andrew Bolt [Sydney Morning Herald, Melbourne Herald-Sun, earlier]
- Texas sues EEOC on its criminal background check policy [Employee Screen]
- After Eric Turkewitz criticizes $85M announced demand in Red Bull suit, comments section turns lively [NYPIAB]
- If only Gotham’s official tourism agency acted like a tourism agency [Coyote on NYC’s official war against AirBnB; Ilya Shapiro, Cato; earlier here and here, etc.]
- “Lawmaker wants Georgia bicyclists to buy license plates” [WSB]
- Religious liberty implications of European moves to ban infant circumcision [Eugene Kontorovich]
- Video on CPSC’s quest for personal liability against agency-mocking Craig Zucker of Buckyballs fame [Reason TV, earlier]
Another note on the J.P. Morgan penalty
Kevin Funnell, on “The Long-Range Consequences Of Adopting The Mating Habits Of A Praying Mantis,” quotes Matthew L. Brown in Boston Business Journal on the consequences of slamming the institution that agreed to help rescue WaMu and Bear Stearns, and is now paying for their sins: “It’ll be a long time, indeed, before a big bank answers the federal help line.” Related: Daniel Fisher, Forbes.
Update: Kansas City flung-hot-dog case
A mascot for the Kansas City Royals threw a wrapped hot dog into the stands, which injured a fan. A jury rejected his claim, but an appeals court reinstated it, and the Missouri Supreme Court is now considering whether the traditional principle that cuts off liability for foul balls and other expected projectiles should cover even the wurst case. [AP, earlier] More: Lowering the Bar.
Love Canal again
The Niagara Falls, N.Y., site of a famous toxic-homes evacuation during the Carter Administration is once again the scene of a claimed disease cluster involving an assortment of maladies. Lawyers say, perhaps not unhopefully, that as many as 1,100 claims may follow the six already filed.
A spokesman for the Environmental Protection Agency, while declining to address the lawsuits, called the area “the most sampled piece of property on the planet.”
“The canal has not leaked,” spokesman Mike Basile said. “The monitoring and containment system is as effective today” as when first installed.
[Buffalo News, AP] For some revisionist history on the causes of the 1970s fiasco, see Eric Zuesse’s classic 1981 Reason article (local officials instigated residential development of land they had been warned was unsuitable for such use) and Ronald Bailey’s 2010 update on the disease issue (“Love Canal residents are not especially prone to early mortality, cancer, or birth defects.”)