Overlawyered: Chronicling The High Cost Of Our Legal System

Podcast guest: liberty and the Constitution in a time of pandemic

I joined hosts Michael Sanderson and Kevin Kinnally on the Maryland Association of Counties’ popular Conduit Street Podcast, which has a large circulation among civically-minded Marylanders and national reach as well. Our talk ranged widely over legal and governmental aspects of the COVID-19 pandemic emergency, including government’s emergency powers, and how they sometimes don’t go away when the emergency ends; the role of the courts, both during the emergency and after it ends, in enforcing and restoring constitutional norms; contrasts between the state and federal handling of the crisis; and the opportunity this provides (and has already provided) to re-examine the scope of regulation, which has been cut back in many areas so as to allow vigorous private sector response in areas like medical care, delivery logistics, and remote provision of services.

Their description:

On a special bonus episode of the Conduit Street Podcast, Walter Olson joins Kevin Kinnally and Michael Sanderson to examine the role of state and local emergency powers in the fight against the COVID-19 pandemic.

Walter Olson is a senior fellow at the Cato Institute’s Center for Constitutional Studies. a libertarian think tank in Washington, D.C. A resident of Frederick County, Olson recently served on the Frederick County Charter Review Commission. Olson has also served as the co-chair of [the Maryland Redistricting Reform Commission, created in] 2015.

MACo has made the podcast available through both iTunes and Google Play Music by searching Conduit Street Podcast. You can also listen on our Conduit Street blog with a recap and link to the podcast.

You can listen to previous episodes of the Conduit Street Podcast on our website.

You can listen and download here (40:04). [cross-posted from Free State Notes] Related: Nashville radio host Brian Wilson did an extended riff on my Wall Street Journal op-ed on federalism and the virus emergency; you can listen here. And I appeared on screen as a source for a Sinclair Broadcasting TV report (see 1:45+).

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Pharmaceutical and medical device roundup

  • “Feds Say It’ll Take Up To 90 Days to Approve New Mask-Making Facilities” [Christian Britschgi, Reason] “America Could Import Countless More Face Masks if Federal Regulators Would Get Out of the Way” [Eric Boehm] Reversing course, FDA agrees to permit wider use of a system developed by Battelle for sterilizing specialized masks worn by front-line health workers [Rachel Roubein, Politico] In the face of mounting criticism, federal Centers for Disease Control may reconsider guidance discouraging general public from wearing face masks [Joel Achenbach, Washington Post]
  • What would we do without the FDA? “FDA Tells At-Home Diagnostics Companies To Stop Coronavirus Test Roll-Outs; The companies are complying. Customers won’t get their results and are being told to destroy their test kits.” [Ronald Bailey, Reason] Small favors: FDA “is easing up on some regulations so that ventilators can be manufactured and implemented more quickly” to respond to crisis [Scott Shackford]
  • And the same continued: “The idea to expand testing of drugs and other medical therapies was strongly opposed by the FDA’s senior scientists this week, the official said, and represented the most notable conflict between the FDA and the White House in recent memory.” [Tyler Cowen] “FDA Shouldn’t Keep Safe Drugs off the Market” [David Henderson]
  • Off-label or no, “the FDA granted an emergency authorization request to make chloroquine and hydroxychloroquine available from the Strategic National Stockpile (SNS), the federally operated supply of medical equipment and pharmaceuticals for use in public health emergencies.” [Naomi Lopez and Christina Sandefur, In Defense of Liberty (Goldwater Institute); Ronald Bailey; Jim Beck; earlier on off-label prescribing here, etc.] Switch of beverage alcohol firms to making hand sanitizer was advanced by waivers from FDA and Alcohol and Tobacco Tax and Trade Bureau [Jeffrey Miron and Erin Partin]
  • Needless face-to-face consults avoided: “Health Canada Sets A Good Example By Relaxing Opioid Prescribing Rules During COVID-19 Pandemic” [Jeffrey Singer, Cato] Some moves in the right direction in the U.S. too [Singer]
  • Even the New Jersey courts aren’t buying the ambitious theory of “fourth-party payor liability,” in which a plaintiff who never “claimed to have used the product, paid for the product, acquired the product, or had any interaction with the product (or its alleged manufacturers) in any way” nonetheless sues them for supposedly driving up health insurance costs [James Beck, Drug & Device Law]
  • Heartburn drug: “Trial lawyers start search for next big mass tort, increase Zantac ads by more than 1,000%” [John O’Brien, Chamber-backed Legal Newsline]

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Federalism comes through on virus response

I’m in the Wall Street Journal today with this paywalled piece on the triumph of federalism on pandemic response: would-be modernizers aren’t scoffing at state government any more, as governors lead the way.

The piece briefly mentions that after surviving yellow fever Alexander Hamilton and his wife Eliza underwent quarantine in the Schuyler Mansion on the order of Albany officials. That was a fun one to research. The essentials are found briefly stated in item number 10 of this list or in this longer narrative. Hamilton wrote a letter griping about the conditions of his confinement. And this article recounts how after the yellow fever outbreak of 1793, Congress expanded the federal government’s role in epidemic response, seen as a helper to the states.

More: responsive thoughts on federalism and the virus emergency from Ilya Somin.

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Disabled advocates: no teaching new content to at-home students

Some disabled rights advocates say until schools can adapt online lessons to assist every special ed kid, schools should not be allowed to use remote learning to finish this year’s curriculum. Fortunately, Education Secretary Betsy DeVos said no to that bit of zealotry — even if it did carry the day in school systems like Chicago’s. My new Cato post argues that the advancement of the student body as a whole should not be held hostage to anti-discrimination principles.

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From the FedSoc archives: “The Death of Contract and the Rise of Tort”

What good is sitting alone in your room without catching up on your video watching? This newly released panel discussion from the 1991 (!) Federalist Society National Lawyers Convention tackles the then-afoot trend to diminish the domain of traditional principles of contract in favor of prescribed duties under tort law, a trend I had discussed in my book The Litigation Explosion in that year. That particular trend, like some of the others I criticized, was to turn around in later years; contract did not die and in fact came back strong as it remains today.

It was quite a line-up that day:

Featuring:

Walter Olson, Manhattan Institute
Hon. Joseph R. Grodin, University of California Hastings College of Law and former Associate Justice, California Supreme Court
Prof. Randy E. Barnett, Chicago-Kent College of Law
Prof. E. Allan Farnsworth, Columbia Law School
Moderator: Hon. Robert Bork, American Enterprise Institute and former Supreme Court nominee

A direct YouTube link is here.

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From prison, Tiger King star seeks $94 million

The former owner of a roadside exotic-animal zoo, currently serving a 22 year prison sentence after being found guilty of a murder-for-hire plot targeting an animal rights activist as well as other violations of law, is now suing the federal Interior Department and Wildlife Service as well as other persons involved in the case. The details of his claims are, well, exotic [Zoe Shenton, Cosmopolitan]

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COVID-19 pandemic roundup

  • Bonfire of the regulations, continued: feds and states ditch trucking rules to keep the deliveries rolling [Christian Britschgi, earlier on bonfire of the regs]
  • Poll finds U.S. public approving extraordinarily coercive measures to combat epidemic, in many cases with little if any gap between parties [Adam Chilton, Summary, Judgment]
  • Could the emergency spur a shift to online video notarization, already authorized in 10 states? [Eugene Volokh]
  • “It must really be the apocalypse if the state of Oregon is letting drivers fill their own tanks. My favorite moment in this FAQ: ‘How will I know how to pump my own gas?'” [Jesse Walker linking Eugene Register-Guard]
  • Legal resources related to the crisis, from the UCLA law library;
  • Eggs in one basket: tsunami of unemployment claims should force rethink of monopoly state fund idea practiced by four states (Washington, Ohio, North Dakota, Wyoming) [Ray Lehmann, R Street Institute]

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Don’t deprecate off-label drug prescribing

Is it questionable and suspicious for doctors to administer a medication that has not been proved effective for the use in question? Nope. It’s perfectly normal. I explain “off-label prescribing” in a new opinion piece at the Washington Examiner, the news hook being the recent flap about chloroquine/hydroxychloroquine as possible treatments for COVID-19. A related Twitter thread is here as well as here, and here’s our earlier coverage of off-label prescribing.

Also related, this recent line from Scott Alexander is so apt: “Just like the legal term for ‘not proven guilty beyond a reasonable doubt’ is ‘not guilty’, the medical communication term for ‘not proven effective beyond a reasonable doubt’ is ‘not effective'”.

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Medical roundup

  • Telemedicine has become a crucial tool during the crisis. 2017 paper discusses the regulatory barriers that had constrained it [Shirley Svorny, Cato Policy Analysis; earlier here, here, and here]
  • “Wondered why it’s been so hard to ramp up production of surgical masks and respirators? Why haven’t private companies flooded into the market to meet peak demand? Because they are regulated medical devices and new versions require FDA approval which can take months to obtain.” [Paul Matzko thread on Twitter]
  • Asking former health care workers to “dust off their scrubs” and return for the emergency raises possible liability exposures [Lori Rosen Semlies, Wilson Elser] “Coronavirus could affect med mal rates: Experts” [Judy Greenwald, Business Insurance]
  • A closer look at certificate of need laws, which suppress hospital bed supply [Eric Boehm, related audio clip with Jeffrey Singer, earlier and more]
  • More on the relaxation of occupational licensure in medical jobs during the emergency [Michael Abramowicz, Jeffrey Singer, earlier]
  • Return with us now to those days not so long ago when public health specialists seemed to be in the paper every day inveighing against alcohol, dietary choices, and such like [Elaine Ruth Fletcher, Health Policy Watch last year on World Health Organization (WHO) rumblings against alcohol; JAMA on furious fight over red-meat recommendations]

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