Scalia's textualism, originalism dominate || Slate

http://www.slate.com/articles/news_and_politics/jurisprudence/2016/02/antonin_scalia_dead_at_79_dominated_the_supreme_court.html

Healthy Marlboro Smokers In Mass. Denied Lung Screening - Law360

I really have to hand it to Diane Sullivan - lead attorney for Philip Morris.  The jury in Donovan v. Philip Morris has rendered its verdict:  Marlboros are not defective and dangerous.  In my opinion the management of Philip Morris should be serving life without parole for their design of Marlboros.  The dominant brand of American cigarettes delivers more nicotine to smokers than any other - by design.  (I know as a former Marlboros addict.) Yet the lawyers for what is in my opinion a criminal enterprise have won a huge victory. - gwc

Healthy Marlboro Smokers In Mass. Denied Lung Screening - Law360

By Cara Salvatore

Law360, New York (February 10, 2016, 1:38 PM ET) -- Cigarette giant Philip Morris USA need not pay for annual lung screenings for a large class of currently healthy Marlboro smokers, a Massachusetts federal jury decided Wednesday, according to a Philip Morris spokesman.

(Credit: AP)

A class of tens of thousands of healthy Massachusetts Marlboro smokers wanted Philip Morris to pay for annual scans using low-dose computed tomography, or LDCT, a relatively new technology that can pick up cancer signs much earlier than a chest X-ray. The scans cost $500 each, and the Philip Morris spokesman said Wednesday that the annual screening program would have lasted 28 years and cost the company $190 million.

The jury began deliberating Tuesday afternoon after closing arguments and reached the verdict on Wednesday.

“This was the third case of its kind to go to trial, and in each the jury ruled in favor of Philip Morris USA," Altria Client Services senior vice president and associate general counsel Murray Garnick said in a statement Wednesday. Altria Group is the corporate parent of Philip Morris.

The two other trials were in Louisiana and West Virginia “in the early 2000s,” the company spokesman said. But medical-monitoring claims are still relatively new, and many states don’t allow them.

Donovan, Cawley and their class of smokers over age 50 are led by Steven Phillips of Phillips & Paolicelli LLP, who tried to bring a similar suit in New York and were shut down by New York’s high court. In Caronia v. Philip Morris, a deeply divided New York Court of Appeals barred the potentially costly new type of civil tort claim, which can be brought without an actual injury.

California, Louisiana, Pennsylvania and Massachusetts have explicitly allowed this new type of claim; the latter’s high court ruled in 2010 that medical-monitoring claims can proceed under a tight set of guidelines.

U.S. District Judge Denise Casper will now decide if there was a consumer-protection violation, according to Altria.

An attorney for the plaintiffs was not immediately available for comment.

A major study published in 2011, the National Lung Screening Trial, or NLST, drove government recommendations that longtime smokers age 55 to 74 get annual screenings. Some groups' recommendations stretch to 79.

"You don't want to be catching tumors the size of a baseball. You want to be catching the tumor that's the size of a [grain of] rice," plaintiffs' attorney Victoria Phillips of Phillips & Paolicelli told the jury of eight men and two women during opening arguments on Jan. 27.

The plaintiffs’ first witnesses, a pulmonologist and a thoracic surgeon, told the jury that LDCT can lower smokers’ lung-cancer mortality significantly because it detects abnormal tissue much earlier than X-rays do.

Recently retired thoracic surgeon Frederic Grannis, the second witness, told the jury that whatever the issues, LDCT allowed for vastly improved survival over X-rays.

“For most of my career, we didn’t have screening, and we would see a patient only when they had their first symptoms,” Grannis said, like coughing up blood, a headache and bone pain — symptoms whose appearance usually means a patient’s cancer is too advanced to be treated, much less reversed.

Philip Morris had maintained it could not be held accountable for the cost of the screenings. Its attorney, Diane Sullivan of Weil Gotshal & Manges LLP, said in opening arguments that there was no safer alternative to the Marlboros Philip Morris made because the market rejected a low-tar product that the company promoted heavily in the 1980s.

The plaintiffs are represented by Kevin Peters of Arrowood Peters LLP; Steven Phillips, Victoria Phillips and Aryeh Taub of Phillips & Paolicelli LLP; Christopher Weld Jr. and Edward Foye of Todd & Weld LLP; and David Strouss of Thornton & Naumes LLP.

Philip Morris is represented by Kenneth Parsigian and Gwyn Williams of Latham & Watkins LLP, Diane Sullivan of Weil Gotshal & Manges LLP and Lauren Goldman of Mayer Brown LLP.

The case is Donovan et al. v. Philip Morris USA Inc., case number 1:06-cv-12234, in the U.S. District Court for the District of Massachusetts.

--Editing by Rebecca Flanagan.

OTHERWISE: Expanding Coercive Treatment Is The Wrong Solution For The Opioid Crisis

Get tough approaches to drug treatment are misconceived. - gwc

OTHERWISE: Expanding Coercive Treatment Is The Wrong Solution For The Opioid Crisis

Ken Stabler and the Disgrace of the NFL Concussion Settlement

"They paid with their brains for our viewing pleasure" says Ken Stabler's longtime partner.  "I looked it in the eye everyday the last fifteen years of his life."
The NFL concussion settlement excludes anyone who died after the date of approval of the class action settlement.  Since the tort system has proven inadequate there should be a legislative solution here, financed by a tax or licensing fee compelling the NFL and the NCAA  and the public schools to pay for the studies, the treatment, the compensation etc. that are attributable to playing football. - gwc
VIDEO
NFL great Ken Stabler had brain disease

China unveils first oil spill response plan | Reuters

China unveils first oil spill response plan | Reuters

China's cabinet has approved the country's first oil spill emergency response scheme to be ready by 2020, to tackle increasing risks from offshore leakages, the government said on Monday.

The new regulation - which sets oil clean-up capacity at 1,000 tonnes (7,300 barrels) within 50 nautical miles from shore - came amid a tightening of the country's environmental rules after several oil spills in recent years.

China will be capable of cleaning up 10,000 tonnes of oil discharged in those waters that are prone to high risks and less than 50 nautical miles from the coast, according to a statement on the Chinese government's main web portal.

In addition, coastal cities should be equipped to clean up and recycle 10,000 tonnes of spilled oil, the cabinet said.

By 2020, China will have 191 offshore facilities, 260 emergency boats and 52 onshore facilities as well as trained personnel that can handle emergencies, the cabinet added.

Previously, China had no nationwide oil spill response scheme, according to the cabinet, leaving companies and local governments to set up their own procedures.

ConocoPhillips and CNOOC Ltd have been embroiled in a series of legal claims following oil spills in 2011 in the Bohai Bay that polluted more than 6,200 square kilometers of water.

In 2000, a pipeline blast in the northeastern port of Dalian leaked 1,500 tonnes of heavy crude oil into the sea, and took nearly 8,000 workers and hundreds of fishing boats to clean up.

(Reporting by Meng Meng and Chen Aizhu; Editing by Dale Hudson)

Oyez - Supreme Court Archive May Shut Down // National Law Journal

OTHERWISE: Oyez - Supreme Court Archive May Shut Down // National Law Journal

The Oyez Project - a Supreme Court Archive which features oral arguments before the United States Supreme Court - is a civics resource relied on by many teachers - including me.  Political scientist Jerry Goldman was inspired by my grad school classmate, lawyer/historian Peter Irons.  The star protege of left wing historian Howard Zinn, Irons, a draft resister as a young man, secretly copied the tapes, infuriating Chief Justice William Rehnquist.  Irons' edited Supreme Court transcripts and audio were published as the popular May It Please the Court,used in many classrooms, and a popular gift for lawyer moms and dads, and law student children. 

One would hope that Google or the like would want to fund the project in the future. - gwc

Due Process for Central American Refugees? //ImmigrationProf Blog

OTHERWISE: Due Process for Central American Refugees? //ImmigrationProf Blog

Philip E. Wolgin for the Center for American Progress has a new column that considers major due process failings in the process surrounding the removal process of asylum-seekers arrested in recent the raids of Central American mothers and children and offeres a look at what adequate due process would look like

The False Lure of the Sanders Single-Payer Plan

The False Lure of the Sanders Single-Payer Plan

by Paul Starr (Princeton University)



Wouldn’t it be great if we could just go to the doctor and not pay any bills? After all, isn’t that what they do in other countries, and don’t those countries have lower health-care costs than the United States does? And aren’t private insurance companies the only reason we don’t have that kind of system?

This is the appeal of the Bernie Sanders single-payer health plan. Free health care, with none of the frustrating paperwork of today’s insurance, and with taxes that cost less than insurance premiums—what could be better than that? Of course, the single payer in the Sanders plan is the federal government, which implies concentrating payment and therefore power over health care in Washington. But, at least in this area, many Democrats don’t seem worried about that prospect.

Sanders doesn’t just call for incremental steps toward single-payer. He’s proposing to shift all of health care to federal taxes in one fell swoop. That’s one reason for the enormous, sudden increase in taxes the plan would require—$1.38 trillion on top of existing federal spending, according to Sanders’ own estimates. As Harold Pollack has pointed out, that $1.38 trillion is just about equal to total federal income and estate tax collections in 2014—in other words, the plan would require doubling that revenue. Sanders insists that he’s shown how he would pay for it through a 6.2 increase in payroll taxes (which he calls an “income-based premium paid by employers,” though the cost will fall on employees); a 2.2 percent increase in income taxes on everyone; higher estate taxes; taxing capital gains and interest as ordinary income; limiting tax deductions for the rich; and higher income-tax rates on the upper brackets (which, combined with other increased taxes he’s also calling for, would bring the top marginal federal rate to 77 percent, as Dylan Matthews shows at Vox).

But Sanders’s estimate of the needed increase in taxation, despite its whopping size, is too low. The plan would actually cost another $1.1 trillion a year, according to an analysis by Kenneth Thorpe, a health-care economist at Emory University, who has long experience working with single-payer proponents. In 2006, the Vermont legislature hired Thorpe to cost out a single-payer proposal, and in 2014 progressive legislators in Vermont hired him again. So this is not an estimate from an economist generally opposed to universal health care or to single-payer. Thorpe’s estimates indicate that workers would have to pay an additional 20 percent of compensation to pay for Sanders’s plan.

At Vox, Matthews has probed both Thorpe and the Sanders campaign on some of the specific areas where their numbers diverge. Here’s one stunning detail: When the Sanders campaign released its plan, it estimated $324 billion in annual savings on prescription drugs—until Thorpe noted that the United States spent only $305 billion for that purpose in 2014. (If Trump can expect Mexico to pay for a wall on the border, I suppose Sanders can expect drug companies to pay consumers instead of the other way around.) When Matthews pointed out that it was impossible to save $324 billion out of $305 billion, the Sanders camp cut their savings estimate to $241 billion, while conveniently increasing other projected savings to make up the difference. But $241 billion in drug savings are still implausible, and as the entire episode indicates, the Sanders campaign is simply pulling numbers out of the air.

OTHERWISE: How GM ignition-switch plaintiffs' lawyer botched his big case

OTHERWISE: How GM ignition-switch plaintiffs' lawyer botched his big case

The Rebel Soldier Who Became Chief Justice of the United States: The Civil War and Its Legacy for Edward Douglass White of Louisiana by Andrew Kent :: SSRN

OTHERWISE: The Rebel Soldier Who Became Chief Justice of the United States: The Civil War and Its Legacy for Edward Douglass White of Louisiana by Andrew Kent :: SSRN


Andrew Kent, in a forthcoming issue of the American Journal of Legal History, has resurrected the little remembered personality and jurisprudence of Edward D. White, Jr., a Louisianan, Confederate soldier, Redeemer politician, and Chief Justice of the United States. A relentless researcher, Fordham law professor Kent has exhaustively detailed and assessed the sketchy and diffuse records of White’s youthful role as a Confederate loyalist and soldier. Kent probes the mystery of how White, the son of a plantation owner, Congressman and Governor spent the war years in Louisiana, became a soldier and POW however briefly, and afterward opposed Reconstruction.

A United States Senator when named to the Supreme Court by President Grover Cleveland in 1890, White was a southerner who became a `nationalist’ judge supporting expansions of federal authority. Promoted to the chief justiceship by President William Howard Taft in 1910, White in Standard Oil Company of New Jersey v. United States embraced a narrowing construction of the sweeping Sherman Act. The anti-trust measure states at 15 U.S.C. 1 “Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal.” His rule of reason - only unreasonable restraints are barred - remains the foundation of anti-trust law today.

During World War I, White wrote two important decisions in favour of federal emergency powers. Wilson v. New (1917) sustained the Adamson Act of 1916, fixing minimum wages and maximum hours for railroad workers. Military conscription was upheld in the Selective Draft Law Case (1918).

Today’s conservative Justices hark back habitually to the now scriptural Federalist Papers and the compromises of the 1787 Federal Convention. Some expressions - such as those of Antonin Scalia dissenting in the Arizona v. United States immigration law case - employ language evocative of the Articles of Confederation, Article II, if not that of the Confederate States. Scalia there wrote: “The United States is an indivisible “Union of sovereign States.” [Citing Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U. S. 92, 104 (1938).] But White, who experienced the defeat of secession and the re-founding of the nation via the Civil War Amendments expressed a remarkably different vision in the 1918 Selective Draft Cases:

under the Constitution as originally framed, state citizenship was primary, and United States citizenship but derivative and dependent thereon, therefore the power conferred upon Congress to raise armies was only coterminous with United States citizenship, and could not be exerted so as to cause that citizenship to lose its dependent character and dominate state citizenship In reviewing the subject, we have hitherto considered it, as it has been argued, from the point of view of the Constitution as it stood prior to the adoption of the Fourteenth Amendment. But to avoid all misapprehension, we briefly direct attention to that Amendment for the purpose of pointing out, as has been frequently done in the past, how completely it broadened the national scope of the Government under the Constitution by causing citizenship of the United States to be paramount and dominant, instead of being subordinate and derivative, and therefore, operating as it does upon all the powers conferred by the Constitution, leaves no possible support for the contentions made, if their want of merit was otherwise not so clearly made manifest.

Kent has done important service on a number of counts. His meticulous reconstruction of White’s Civil War experience conveys the complexities of wartime life in Louisiana which, though New Orleans fell to the Union on May 1, 1862, remained contested territory throughout the war. This biographical exploration provides an important angle to understand the evolving thinking of a man who as Associate Justice and Chief Justice helped to develop a jurisprudence of national authority which feels quite contrary to the vision embraced by today’s conservatives who embrace not the early Federalists with whom the mature White would have been comfortable but rather the grumbles and cavils of the Jeffersonian Democrats. - gwc

Abstract:


Edward Douglass White (1844-1921) was appointed associate justice of the U.S. Supreme Court in 1894 when he was a sitting U.S. senator, and was elevated to chief justice in 1910. Given his background — White was a Democrat, Confederate veteran, sugar planter, and lawyer from New Orleans, and son of a Louisiana governor — one would have expected White to share the legal and political views of others of his background, class, and region, which were generally hostile to federal power and fervently in favor of white supremacy. Yet White was a nationalist on the Supreme Court. He was considered a de facto Republican by many prominent northern Republicans, and was elevated to the chief’s seat by William Howard Taft. As a justice White voted repeatedly to uphold expansive uses of Congress’s regulatory and taxing powers, including powers first exercised by the Union during the Civil War to tax income and raise armies by conscription. White did not have enlightened racial views, and joined the majority of the Court in Plessy v. Ferguson and other decisions that denied equal rights to African-Americans. But he also wrote the Court’s decisions holding unconstitutional that so-called “grandfather clauses” that were used in the South after the war to prevent African-Americans from voting, and voted in favor of civil rights in other important cases.
Previous biographers have recognized the importance of White’s experience as a Confederate soldier to his life and later judicial and political outlook. But the details they have published about White’s military service have been only brief and vague, and sometimes simply wrong. Relying on a far broader array of original and secondary sources than any previous study, this paper explores what exactly White did, saw, and experienced during the Civil War. Crucially, though, the story is also one about omissions and even deception by White. A newly-discovered document shows that he lied to Federal interrogators about his war service when he was captured in 1865. In later life White rarely spoke of the war, and when he did he offered almost no details about his service. He failed to correct the record when inaccurate biographical details about his service were published. His actual war service was almost certainly much less extensive and honorable than previous biographers have claimed. The most detailed information we possess shows him joining a marauding guerrilla band in rural Louisiana in the closing months of the war.
Later in life, the one thing that White clearly and honestly expressed about the war was deep regret that it occurred at all, anguish about its human toll and effect on his beloved country, and self-criticism about his youthful service on the Confederate side. This picture that emerges of White and his war service is much more complex than offered in previous biographical studies, and provides a surer foundation for assessing his life and judicial work, and accurately understanding his place in the country’s political and legal history.