Friday, July 21, 2017

Miller v. Davis - counsel fees awarded against defiant County Clerk

The United States Supreme Court's 2015 ruling in Obergefell v. Hodges put to rest the issue of whether same sex couples had a right to marry.  A Kentucky County Clerk Kim Davis responded by refusing to issue any marriage licenses.She was briefly jailed for contempt of court - defiance of a preliminary injunction.  Judge David L. Bunning has now rejected the Magistrate's recommendation to deny counsel fees on the ground that April Miller was not a prevailing party because the case resolved short of the permanent injunction plaintiff had sought in her complaint. The court allowed counsel fees of $222, 695, plus costs.  - gwc
Bunning, D.J. Memorandum and Order awarding counsel fees to plaintiff, July 21, 2017 and rejecting
Recommended Disposition and Order of Magistrate denying motion for counsel fees

Monday, July 3, 2017

Program to Spur Low-Income Housing Is Keeping Cities Segregated - The New York Times

The history of "white flight" and suburban segregation.

THE COLOR OF LAW A Forgotten History of How Our Government Segregated America
By Richard Rothstein
Illustrated. 345 pp. Liveright Publishing. $27.95.
Reviewed by David Oshinsky
In the summer of 1950, with Americans reeling from the news of North Korea’s invasion of South Korea and Senator Joseph McCarthy’s ever expanding “Red hunt” in Washington, Time magazine ran a disarmingly cheerful cover story about the nation’s housing boom, titled: “For Sale: A New Way of Life.” Featuring the builder William Levitt, who had recently transformed some Long Island potato fields into a sprawling complex of starter homes — two bedrooms, one bath and an extension attic for $7,990 — it spoke reverentially of the development’s parks and playgrounds and many rules. “Fences are not allowed,” Time noted. “The plot of grass around each house must be cut at least once a week,” and laundry couldn’t be hung outside “on weekends and holidays.”
One rule, however, was conveniently absent from the piece. Homeowners in Levittown were forbidden to rent or sell to persons “other than members of the Caucasian race.” Asked about this so-called “racial covenant,” Levitt blamed society at large. “As a Jew, I have no room in my mind or heart for racial prejudice,” he said. “But I have come to know that if we sell one house to a Negro family, then 90 or 95 percent of our white customers will not buy into the community. This is their attitude, not ours. As a company, our position is simply this: We can solve a housing problem, or we can try to solve a racial problem, but we cannot combine the two.”
At first glance, Levittown stands as a prime example of de facto segregation, which results from private activity, as opposed to de jure segregation, which derives from government policy or law. Levitt, after all, appeared to be an independent businessman responding to the prejudices of the home buyers he hoped to attract. In truth, it wasn’t that simple. As Richard Rothstein contends in “The Color of Law,” a powerful and disturbing history of residential segregation in America, the government at all levels and in all branches abetted this injustice. “We have created a caste system in this country, with African-Americans kept exploited and geographically separate by racially explicit government policies,” he writes. “Although most of these policies are now off the books, they have never been remedied and their effects endure.”
Levittown reflected this dynamic. Popular with World War II veterans and their families, its 17,500 houses required no down payment. The federal government guaranteed low-interest bank loans for Levitt to build them, and low-interest mortgages for veterans to buy them. The government also made clear that developers receiving these incentives must sell to whites only.
It didn’t stop there. In the 1950s, following a Supreme Court decision that restricted the scope of racial covenants, an African-American veteran bought a house in a second Levitt development outside Philadelphia. A white mob formed, the house was pelted with rocks and crosses were burned on the lawn. Amazingly, the black family held out for several years before moving back to a segregated neighborhood. Rothstein sees this incident, and dozens like it, as an insidious form of de jure segregation — the failure of racially biased police and public officials to protect African-Americans from unlawful intimidation
Continue reading the main stor
Program to Spur Low-Income Housing Is Keeping Cities Segregated - The New York Times 


HOUSTON — A mural on the wall of an elementary school here proclaimed, “All the world is all of us,” but the hundreds of people packing the auditorium one night were determined to stop a low-income housing project from coming to their upscale neighborhood.

The proposed 233-unit building, which was to be funded with federal tax credits, would burden their already overcrowded elementary school with new children, many people argued during a lively meeting last year. Some urged the Houston Housing Authority to pursue cheaper sites elsewhere.

As cheers rang out over nearly three hours for every objection raised, Chrishelle Palay, a fair-housing advocate, confronted the mostly white crowd.

“It’s time to face your fears,” Ms. Palay said as boos rang out. “Stop succumbing to misleading rhetoric, and begin practicing the inclusive lifestyles that many of you claim to lead.”

Continue reading the main story
Housing Bias and the Roots of Segregation September 2016

Advocates of Fair Housing Face a Tough Four Years - January 2017

Wednesday, June 28, 2017

Unlocking the Mysteries of Trump v. International Refugee Assistance It's All About that Stay (and Its Surprising Limits) | Take Care

Unlocking the mysteries of Trump v. International Refugee Assistance

by Marty Lederman

Many close observers of the Court are still scratching their heads, trying to figure out just exactly what the Court did yesterday in Trump v. IRAP–and why.  With the luxury of a few hours to ponder the mysteries, here are some tentative speculations on the most commonly posed questions.***


It's All About that Stay (and Its Surprising Limits) | Take Care

by Marty Lederman

Preliminary thoughts (reserving the right to add more as the day goes on!):
The Court nominally granted certiorari in the two "travel ban" cases today, but for reasons I've already explained--reasons the Court implies in its opinion--that's likely to have very little, if any, legal significance, because the case will almost certainly be mooted out by the time oral argument rolls around--and not because of the original March 14 expiration date, which the Court asked the parties to address, and which is no longer a real issue in light of the President's amended Executive Order changing the expiration date of the entry ban.
No, the case will be moot for two other reasons:  For one thing, the 90-day entry ban goes into effect 72 hours from now, at least as to some aliens (see below), and thus it will expire by its terms on September 27.  Moreover, as the Court explains, by October the Section 2 "internal review" should be completed ("[W]e fully expect that the relief we grant today will permit the Executive to conclude its internal work and provide adequate notice to foreign governments within the 90-day life of §2(c).”), and therefore the predicate for the entry ban will be kaput by then, too.
To be sure, it is very possible that at the end of the internal agency review, the Administration might impose a new entry ban, or something similar, with respect to aliens who are nationals of particular countries (perhaps a subset of the six now covered; perhaps some different countries altogether--who knows?).  But if and when it does so, it will be based on a very different factual record, different national security assessments, and, presumably, it will have different terms.  Accordingly, the legality of such a ban (or other entry restrictions) would have to be adjudicated in new lawsuits, beginning at the start, in district courts.  I will therefore be very surprised if the Court issues a merits opinion in these cases--indeed, it's very possible there won't be any oral argument.

OTHERWISE: What Happened in Hernandez v. Mesa? - Lawfare

OTHERWISE: What Happened in Hernandez v. Mesa? - Lawfare

By Andrew Kent
 Tuesday, June 27, 2017, 2:23 PM
During a back-and-forth on Lawfare with Steve Vladeck a few months ago, I suggested that Hernandez v. Mesa, pending at the Supreme Court this term, had the potential to generate a very important opinion: the Fourth Amendment issue in the case could impact the legality of worldwide extraterritorial national security activities by the U.S. government like electronic surveillance and drone strikes.
Hernandez arose out of the deadly shooting of a Mexican national in Mexico by a U.S. border patrol agent standing in the United States. Under a Supreme Court case dating back to 1990, also arising in Mexico, the Fourth Amendment does not protect noncitizens located outside the United States, unless they have some pre-existing substantial, voluntary connection to the United States. The deceased in Hernandez lacked any such connection.
But the Court’s 2008 decision in Boumediene v. Bush, applying the Constitution’s Habeas Suspension Clause to the noncitizen detainees at the Guantanamo base, arguably overruled a bright-line approach to determining the Constitution’s applicability beyond U.S borders. Instead, the Court applied totality of the circumstances analysis. Using Boumediene, the plaintiffs’ counsel in Hernandez, among whom is Steve, argued that the Court could rule for their clients on the applicability of the Fourth Amendment without opening the entire can of worms about extraterritorial national security activities. This was possible, they suggested, because like Guantanamo—Cuban sovereign territory, but leased permanently and controlled exclusively the by U.S. government—the Mexico-U.S. border area is a sui generis territory. This border, they argued, was a liminal zone of shared control with constantly traversing populations, and therefore wholly unlike purely foreign territory.
I was skeptical that the border was truly so unique and that a Fourth Amendment ruling for the plaintiffs could be cabined and limited so neatly.
On Monday, the Court vacated and remanded Hernandez to the Fifth Circuit, declining to rule on the merits of the Fourth Amendment. It avoided this constitutional issue, the Court told us, because “[t]he Fourth Amendment question in this case . . . is sensitive and may have consequences that are far reaching.” This per curiam opinion was issued for Chief Justice Roberts and Justices Kennedy, Alito, Sotomayor, and Kagan. Along the way the Court made important statements about Bivens (more below) and qualified immunity.
Justice Thomas concurred, saying he would have ruled for the border patrol agent on Bivens grounds. Justice Breyer, joined by Justice Ginsburg, dissented, essentially adopting the plaintiffs’ view of the Fourth Amendment. Justice Gorsuch did not participate, as he was seated after oral argument.
What can we glean from the per curiam’s treatment of the Fourth Amendment? We know that five justices seized the opportunity to duck the issue for now. They did so by directing the Fifth Circuit to apply the Court’s new decision in Ziglar v. Abassi on the availability of Bivens, before reaching the merits. 

Tuesday, June 27, 2017

Good Journalism Requires Clarity, Accuracy – Talking Points Memo

Good Journalism Requires Clarity, Accuracy – Talking Points Memo

by Josh Marshall

Pretending that both parties just have very different approaches to solving a commonly agreed upon problem is really just a lie. It’s not true. One side is looking for ways to increase the number of people who have real health insurance and thus reasonable access to health care and the other is trying to get the government out of the health care provision business with the inevitable result that the opposite will be the case.

If you’re not clear on this fundamental point, the whole thing does get really confusing. How can it be that both sides flatly refuse to work together at all? As Bash puts it, “Why can’t these parties work together on something that is such a huge part of the economy, that is something that is so vital to everybody’s lives, all of their constituents’ lives, [it’s] mind boggling.”

Monday, June 26, 2017

Verb That Adjective Noun! “Google” Is Not (Yet) Generic. | LIKELIHOOD OF CONFUSION®

In David Elliot v. Google, Inc. the Ninth Circuit last month rejected the argument that Google is a victim of genericide: that as a verb google it is synonymous with search on the internet.  In such cases - Murphy beds are a prime example - the term loses its ability to identify the source.

Verb That Adjective Noun! “Google” Is Not (Yet) Generic. | LIKELIHOOD OF CONFUSION®

Friday, June 23, 2017

Balkinization: Some preliminary thoughts on Matal v. Tam, Trademarks, and the First Amendment [UPDATED]

Rebecca Tushnet's 43(B)log: Slightly cooler take on Tam

Balkinization: Some preliminary thoughts on Matal v. Tam, Trademarks, and the First Amendment [UPDATED]

Marty Lederman

 The constitutional analysis in the Supreme Court's decision yesterday in Matal v. Tam is, with one exception, split between two four-Justice opinions, the first written by Justice Alito (joined by the Chief Justice, and Justices Thomas and Breyer), and the second written by Justice Kennedy (joined by Justices Ginsburg. Sotomayor and Kagan).   Here are a few preliminary reactions to those opinions.

The Torturers Speak - The New York Times

OTHERWISE: The Torturers Speak - The New York Times

Tuesday, June 20, 2017

Balkinization: SCOTUS blocks Bivens actions by tortured 9/11 detainees

OTHERWISE: Balkinization: SCOTUS blocks Bivens actions by tortured 9/11 detainees

Deborah Pearlstein
The Supreme Court’s decision yesterday in Ziglar v. Abbasi is an abysmal result for those who believe there should be some remedy available when the government violates your constitutional rights – even if Congress has not gotten around to enacting separate legislation creating one.   As others have by now pointed out, it is abysmal as an exercise in legal reasoning as well, whether one agrees with the outcome or not.  What it should not be, as some colleagues have suggested, is fodder for the broader debate – about which I wrote last week in the Trump immigration order context, below – about whether and when the President’s reasoning is entitled to judicial deference in matters of national security. 

 It should perhaps go without saying that the question of executive deference in the immigration order cases – about whether to defer to the executive’s interpretation and application of a statute, or to the executive’s statement of his motive for constitutional purposes – is importantly different from the doctrinal context in which deference arose in Ziglar. Here, in assessing whether or not to imply the existence of a cause of action to sue for money damages for violation of a constitutional right, the Court attended to longstanding (though perhaps not for much longer standing) criteria, including whether “special factors” might counsel hesitation before the courts imply a remedy when Congress had offered none.  Finding such “special factors” present here (more on which anon), the 4-justice majority in Ziglar declined to recognize the availability of a civil remedy for constitutional violations surrounding plaintiffs’ post-9/11 detention.  The result, however wrong, was in no sense surprising.  It has famously been more than three decades since the Court has found a context in which it has thought a judicially implied right to sue for constitutional violations warranted.  Put differently, in the modern Court “special factors,” whatever they may be, have invariably counseled hesitation.  Somewhere in existing canons of judicial prudence, the modern Court has always found a reason why no remedy may be had.

Fair enough, one might respond, but among several reasons Justice Kennedy’s opinion identifies for not recognizing a right to sue here is the argument that plaintiffs’ suit challenged not only the abusive conduct of particular law enforcement officials, but also “elements of the Government’s whole response to the September 11 attacks, thus of necessity requiring an inquiry into sensitive issues of national security.”  The opinion then offers a few boilerplate paragraphs (written as if a clerk had been instructed to hit the “Alt-F7” Executive Deference key) invoking historic (and substantively unrelated) cases in which the Court has recognized (among other things) the President’s entitlement to deference on questions of national security.  Had the opinion left it there, notwithstanding the uniquely disfavored doctrinal context, I might have wondered more whether this language signaled a return to an era of more judicial deference to presidential decision-making.  Happily (in one sense, for no one should welcome a Supreme Court opinion this weakly argued), the very next paragraph hits the “Alt-F8” key, listing cases in which the Court has insisted (in Justice O’Connor’s popular terms) that “[w]hatever power the United States Constitution envisions for the Executive . . . in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake.”

Having put the two conflicting canons on the table, even the modestly sage law student exam writer knows the money paragraph must follow. That is, the opinion’s next move must be to explain why the present case more directly implicates the one set of concerns rather than the other.  Herewith, the Ziglar opinion’s money paragraph (on this topic) in its entirety.

Even so, the question is only whether “congressionally uninvited intrusion” is “inappropriate” action for the Judiciary to take. Stanley, 483 U. S., at 683. The factors discussed above all suggest that Congress’ failure to provide a damages remedy might be more than mere oversight, and that congressional silence might be more than “inadvertent.” Schweiker, 487 U. S., at 423. This possibility counsels hesitation “in the absence of affirmative action by Congress.” Bivens, 403 U. S., at 396.

In other words, notwithstanding any question of the executive’s entitlement to deference on questions of national security policy nominally invoked in the preceding paragraphs, what we’re really basing our decision on here is something else entirely – namely, as best I can make out, that it is more reasonable to interpret congressional silence as congressional opposition when it comes to the availability of remedies for unconstitutional government conduct ostensibly carried out for the purpose of protecting national security.  One could set aside I suppose the long list of dangers associated with trying to intuit the intent of a collective body at all, much less a collective body whose relevant action here is to have said nothing one way or another.  One might equally wonder whether precisely the opposite presumption is required about congressional views when it comes to matters of national security – for example, because Congress’ established political incentives against taking any action on any question of national security are by now so apparent, it should be assumed Congress approves of another branch’s conduct (whether the use of force against ISIS or the implication of judicial remedy for a violation of individual rights) unless Congress says otherwise.  One might set all this aside in rejecting the decision’s import for executive deference, because this reasoning has nothing to do with the Executive at all, but rather to how the Court should interpret Congress’ failure to enact a statutory cause of action on which plaintiffs could otherwise rely.  

Ziglar is a bad outcome for judicial enforcement of constitutional rights, no doubt. But grounds for celebration that the Court might look more favorably on Trump’s immigration justification after all?  That I don’t see.

Wednesday, May 3, 2017

James Comey Is ‘Mildly Nauseous’ About the Election. It’s Not Enough. - The New York Times

James Comey Is ‘Mildly Nauseous’ About the Election. It’s Not Enough. - The New York Times

by Andrew Rosenthal

Not only did [FBI Director James] Comey probably tip the election to Donald Trump; he also handled the investigations of Clinton’s emails and Trump’s strange relationship with the Kremlin in entirely different ways. He treated Trump with the Federal Bureau of Investigation’s customary silence about ongoing probes. He talked about the Clinton investigation in extremely public and damaging ways.
When Comey decided to announce the reopening of the Clinton email probe, he had no solid evidence that there was any significant new information on the newly discovered computer, belonging to the disgraced former congressman Anthony Weiner, that sparked the renewed investigation.

The Color of Law: Forgotten history: how the federal government segregated America

Forgotten history: how the federal government segregated America
Terry Gross interviews Richard Rothstein, author of The Color of Law

CPSC commissioner Kaye on proposed table saw rule

Monday, January 30, 2017

How Jeff Sessions Helped Kill Equitable School Funding in Alabama - ProPublica

OTHERWISE: How Jeff Sessions Helped Kill Equitable School Funding in Alabama - ProPublica

Alabama schools - long segregated by law - created inferior schools - especially majority Black schools which got particularly low funding.  When a court was about to impose equitable funding, Jeff Sessions - then the state's Attorney General - fought back.

Friday, January 6, 2017

Safety of Non-Steroidal Anti-Inflammatory Drugs (NSAIDs) - Medical News Bulletin

Safety of Non-Steroidal Anti-Inflammatory Drugs (NSAIDs) - Medical News Bulletin

A recently developed category of NSAIDs, the world’s highly-demanded class of drugs, was associated with some concerns about their cardiovascular side effects that led to discontinuation of one of the two drugs of this new category. New research findings compare the side effects of Celecoxib, the only remaining drug of this category, with two other commonly prescribed NSAIDs, Ibuprofen and Naproxen.

 Non-Steroidal Anti-Inflammatory Drugs (NSAIDs) are a class of drugs that were introduced in the 1960s and are widely used to reduce pain, inflammation, and fever associated with a vast variety of conditions from rheumatoid arthritis and viral or bacterial infections, to common muscular or joint pains and even simple headaches.

The main flaw of NSAIDs is the alteration of protective mechanisms of the stomach mucosal membrane, due to their non-specific action, that leads to gastrointestinal complications. A new strand of this class of drugs including Rofecoxib and Celecoxib, with a specific action – to target pain and inflammation while avoiding the stomach mucosal receptors – was produced a number of years ago. But later, in 2004, Rofecoxib was withdrawn from the market after evidence of its cardiovascular side effects. Celecoxib, however, could remain in the market with permission of Food and Drug Administration (FDA) with the condition of conducting a cardiovascular safety study, after the results of another study showed that its cardiovascular side effects were associated with doses higher than recommended. The results of the Prospective Randomized Evaluation of Celecoxib Integrated Safety versus Ibuprofen Or Naproxen (PRECISION) study have been published recently in the New England Journal of Medicine to fulfill the requirement of that condition.
This randomized clinical trial has been conducted at 926 centers in 13 countries on more than 24,000 patients with rheumatoid arthritis or osteoarthritis who were at an increased cardiovascular risk. Although the study has been sponsored by Pfizer, the main producer of Celecoxib, measures were applied to ensure precision of the process and results of the study. For example, an executive committee, the sponsor and the FDA collaborated in designing the study; the statistical analysis was done by an independent centre that was not aware of which drug was given to each group; and the academic writers who wrote the report were not dependent on the company and were free to decide on the content of the article. The participants of the study were randomly assigned to three groups of about 8,000 patients each, who were prescribed an average recommended daily dose of Celecoxib, Naproxen or Ibuprofen. The dose of each drug could be modified based on the symptoms of each patient. The patients took their medications for an average length of about 20 months and were followed-up for an average of about 34 months.
Comparing events of death or hospitalization due to cardiovascular conditions showed that the patients who received Celecoxib were not at any more cardiovascular risk than patients in the Ibuprofen or Naproxen groups. Other cardiovascular symptoms like coronary revascularization, non-fatal stroke or hospitalization for transient ischemic attack (TIA) were also not reported more often in Celecoxib group than in the Naproxen or Ibuprofen groups. The researchers were not surprised by the results showing less frequent gastrointestinal complications in Celecoxib group than in the other two groups, because this drug had been originally designed to have less gastrointestinal side effects. Renal complications of Celecoxib were less common than that of Ibuprofen and Naproxen, as well.
In conclusion, physicians can prescribe Celecoxib to patients with inflammatory diseases, who have sensitive stomachs, with peace of mind.

Thursday, January 5, 2017

The Search for a Grand Unified Theory of Tort Law - The Search for a Grand Unified Theory of Tort Law

 The Search for a Grand Unified Theory of Tort Law - The Search for a Grand Unified Theory of Tort Law

BOOK REVIEW by Scott Hershovitz

Theorists like to do a lot with a little. And not just because simple theories seem more elegant: we deepen our understanding when we learn that disparate phenomena are linked together. In physics, for example, the theory of thermodynamics showed us the relationship between mechanics and heat. In economics, the theory of the firm showed us that, across industries that look nothing alike, a simple principle helps explain the organization of economic activity. Of course, there is no guarantee that the disparate phenomena we suspect are linked actually are. Particle physicists continue to search for a Grand Unified Theory, which would integrate gravity with the other fundamental forces. It may be that there is no such theory, or that we are not in a position to discover it, even if there is one. But absent such a theory, our understanding of the way the world works seems incomplete. And our track record of linking disparate physical phenomena (mechanics and heat, electricity and magnetism, space and time) gives us good reason to suppose that there are deeper explanations in the offing.
Cover for Private Wrongs

Private Wrongs

By Arthur Ripstein. Cambridge, Mass.: Harvard University Press. 2016. Pp. ix, 313. $49.95.
Legal theorists like to do a lot with a little too, but their track record is decidedly less impressive. John Austin, for example, thought that he could capture the nature of law in a simple slogan: law is the command of the sovereign. H.L.A. Hart showed that Austin’s theory was too simple. Among other problems, some laws are not commands, and some legal systems do not have sovereigns, at least in Austin’s sense. But Hart had a simple theory of his own: a legal system is a union of primary and secondary rules. Alas, Hart’s theory was too simple too. It didn’t distinguish law from other systems with primary and secondary rules (chess, for example, or a university’s regulations). And there are reasons to doubt that rules are the fundamental building blocks of law, or that law even has fundamental building blocks at all. Indeed, it is possible that the connections between the things we regard as legal systems are simply historical, such that there is nothing — or at least nothing significant — that all of them share in common. To make this point, Ronald Dworkin invoked Wittgenstein’s image “of a rope composed of many strands no one of which runs for its entire length or across its entire width.” If law is like that, then the search for a common thread that runs through it, wherever and whenever it is found, is doomed to fail.
But doom does not entail gloom: you can learn a lot from reading Austin and Hart, even though you cannot learn what law is. And you can learn a lot from reading Professor Arthur Ripstein’s provocative new book, Private Wrongs, even though his project is just as doomed as theirs. Ripstein’s target is tort law, and he aims at nothing less than a Grand Unified Theory. He wants to explain both the rights that tort law recognizes and the remedies that it offers. But he is not satisfied with piecemeal explanations of this or that right or remedy. Rather, he says that recognizing “the unity of right and remedy is the key to understanding tort law” (p. ix). And one simple idea, he says, accounts for all of tort’s rights and remedies: no one is in charge of anyone else.

OTHERWISE: Cannabis: high time for evidence-based policies - The Lancet Oncology

 I am skeptical about legalization by referendum.  I am opposed to criminalization.  But is pot safe?  It affects heart rate - are there dangers there?  It is rule of thumb in toxicology that the dose makes the poison.  We don't know- really - what a safe dose it.  We know the smoke is harsh.  If it were up to me the FDA would regulate it and the CDC would conduct rigorous studies.- gwc

Cannabis: high time for evidence-based policies - The Lancet Oncology


On Nov 8, while Americans elected Donald Trump as their next president, those in California, Maine, Nevada, and Massachusetts quietly voted for a different kind of change: legalisation of the use, sale, and consumption of recreational marijuana for adults over 21 years of age. Meanwhile, voters in North Dakota, Montana, Arkansas, and Florida legalised or reduced restrictions on medical (or prescription) marijuana. An ongoing controversy, marijuana legislation in 30 US states now conflicts with US federal law, in which marijuana is a Schedule I controlled substance with “no currently accepted medical use” and “high potential for abuse”, but brings these states in line with a global trend. For individuals with chronic pain and treatment-induced side-effects—both common in patients with cancer and cancer survivors—legalisation of marijuana use could change the treatment landscape, but evidence-based, rational policies must be a top priority.
Cannabis is legal for medicinal use or is decriminalised in more than 11 European countries, including the Netherlands, Belgium, and Spain. Australia legalised medicinal cannabis on Nov 1, 2016, and Germany and the Canadian federal government will follow in 2017. The US National Institutes of Health lists cannabis and cannabinoids (of which tetrahydrocannabinol [THC] is the most notable) as having potential for treating cancer-related symptoms caused by the disease itself or its treatment, although the evidence for its benefits and harms is conflicting. Randomised controlled trials testing cannabis and cannabinoids for the treatment of chemotherapy-induced nausea and vomiting and cancer-related pain have reported mixed results. Cannabis itself has not been approved for use by the US Food and Drug Administration (FDA). Dronabinol and nabilone, synthetic versions of THC, have been approved by the FDA to treat cancer-related and chemotherapy-induced nausea, but these are not derived from the native plant. This is in part because research on marijuana in the USA is highly restricted: it requires approval from three separate federal agencies and the drug must only be supplied by the National Institute on Drug Abuse. However, for a product rapidly becoming mainstream, clinical trials and basic research are crucial: the requirement for evidence of the benefits and risks of marijuana use will grow as access increases and regulations, including clear guidelines for safe and effective use, must be developed.
As well as improving quality and safety, legalisation could lift barriers to marijuana access and lessen social stigmas around its use. This could certainly benefit patients with cancer using marijuana products as part of their palliative and supportive care. However, there remain several potential pitfalls. The first is due to the peculiarity of the adoption of legalisation on a state-by-state basis rather than as federal law. Patients in legal states will have unrestricted access, while those living across state lines will be disadvantaged. This leaves opportunities for criminals to traffic marijuana to capitalise on unequal access. Consequently, law enforcement in states bordering those with legalised use will be difficult. And, is it possible, or ethical, to distinguish recreational users from patients with cancer who might have legitimate palliative care needs to ensure their access?
Taxes from the regulated sale of marijuana could be enormous; a 2015 report on the economic impact of legalisation in Colorado, USA, since Jan 2014 stated that “legal marijuana activities” generated “$121 million in combined sales and excise tax revenues”. The use of monies from taxes and other regulatory steps must be balanced with the needs of the public for affordable effective therapies. Using economic gains to improve health-care overall would be a worthy goal. Conversely, medicalisation of marijuana might lead to profit-based pricing that takes no account of, or artificially controls, supply and demand. In turn, this could promote black market trade and predatory practices on vulnerable people, two of the main evils legalisation is intended to combat.
One role of the government is to provide the best health care to its citizens. Government should, through judicious regulation, ensure that legal medicinal products are safe, efficacious, and cost-effective; that they are widely accessible; and that any potential profits are used to develop and improve the health system. Crucially, at a time when countries and governments are just starting to control the cancer epidemic caused by tobacco smoking, we must ensure that we do not legalise another inhalable product that could lead to another major public health crisis in 20 years' time. Questions arising over access, regulation, and cost must be handled appropriately to promote improved health and ensure equitable and appropriate access for all.

J&J $1B hip implant verdict cut in half by Dallas judge

Image result for depuy hip implant
 J&J $1B hip implant verdict cut in half by Dallas judge

by John Counciil// NJ Law Journal

A Dallas federal judge has slashed a $1.04 billion verdict against Johnson & Johnson nearly in half, a month after a jury punished the company over a hip implant device made by its DePuy Orthopaedics division.
It took the jury less than a day on Dec. 1 to issue the billion dollar award to six plaintiffs after concluding that Johnson & Johnson misled them and their doctors about the safety of the Pinnacle hip implant.
U.S. District Judge Ed Kinkeade on late Tuesday issued final judgments in those six cases that reduced the total award to $540 million — a cut that sliced the plaintiffs' punitive damages awards in half but left compensatory damages untouched.
To justify the reduction, Kinkeade cited the U.S. Supreme Court's 2003 decision in State Farm v. Campbell, which holds that the due process clause usually limits punitive damages to less than ten times the size of compensatory damages.
Mark Lanier of Houston's The Lanier Law Firm said he respects Kinkeade's decision but filed an immediate notice of appeal challenging the decision to the U.S. Court of Appeals for the Fifth Circuit.
"He's a conservative judge but he's a fair judge," Lanier said. "I'm appealing this because $500 million just disappeared in a puff of smoke. I think the judge is being conservative but I don't think that the law is that conservative. We'll just see what happens.''