Category: Law

Ah winter, time to take the kids out sledding at the local park.  Not in many communities where sledding has been banned because of liability concerns.

We have two systems of drug regulation in the United States, the FDA and tort law.  Unfortunately, neither system works well.  FDA incentives push for excess delay and excess cost and the tort system appears random if not perverse in its operation with good claims receiving nothing and bad claims receiving billions.

Writing in the New Yorker, James Surowiecki discusses some relevant research from Kip Viscusi:

Merck would seem to have one big thing in its favor: the company
voluntarily withdrew Vioxx from the market. But while Merck executives
may have hoped to persuade people that they were acting responsibly,
plaintiffs’ attorneys have taken the withdrawal as an admission of
guilt…internal
company documents show that Merck employees were debating the safety of
the drug for years before the recall.

From a scientific perspective, this is hardly damning. The internal
debates about the drug’s safety were just that–debates, with different
scientists arguing for and against the drug….While that kind of weighing of risk and benefit may be medically
rational, in the legal arena it’s poison. Nothing infuriates juries
like finding out that companies knew about dangers and then “balanced”
them away. In fact, any kind of risk-benefit analysis, honest or not,
is likely to get you in trouble with juries….Viscusi has shown that
people are inclined to award heftier punitive damages against a company
that had performed a risk analysis before selling a product than a
company that didn’t bother to. Even if the company puts a very high
value on each life, the fact that it has weighed costs against benefits
is, in itself, reprehensible. “We’re just numbers, I feel, to them” is
how a juror in the G.M. case put it. “Statistics. That’s something that
is wrong.”…

Before a jury, then, a firm is better off being
ignorant than informed.

David Rottman and I are having a daily discussion this week on judicial elections at Point of Law.

A toilet brush with a tag that says "Do not use for personal hygiene" has taken top prize for the wackiest consumer warning label of the year, according to an anti-lawsuit group.

The Michigan Lawsuit Abuse Watch, M-LAW, whose main mission is to reveal how lawsuits and anxiety over lawsuits have created a need for overly obvious warnings on products, sponsors the The Wacky Warning Label Contest each year.

Other top finishers this year include:

— A scooter with the warning "This product moves when used."

— A digital thermometer with the advice "Once used rectally, the thermometer should not be used orally."

— An electric blender used for chopping and dicing that reminds users to " "Never remove food or other items from the blades while the product is operating."

— And a three-inch bag of air used for packaging that read "Do not use this product as a toy, pillow, or flotation device."

Here is the link.  Read Alex too.

The focus is litigation, and it is run by the Manhattan Institute; the name is www.pointoflaw.com. Here is one good post on biases in expert witness testimony.

A school in Puyallup Washington has banned all Halloween activities. Why?

“We have been contacted by followers of the Wiccan religion, and they indicated they have been offended after seeing elementary school depictions of witches with long noses, warts, cauldrons and such,” said Tony Apostle, the superintendent who banned Halloween.

Halloween activities have also been banned elsewhere in the country but for a different reason:

Complaints about Halloween from Pentecostal parents in Texas have forced a significant number of that state’s school districts to cancel in-school parties, said Richard W. Stadelmann, a professor of religious studies at Texas A&M University.

There is a geographical pattern to the grumbling, according to Stadelmann and others. Christian complaints come mostly from the South and Midwest, whereas Wiccan complaints are more likely to come from California and the Pacific Northwest.

China is stepping up its hard line against internet pornography by threatening life imprisonment for anyone caught peddling porn.

Ne’er-do-wells involved in the production and distribution of online adult content – including “phone sex” – face a range of punishments including compulsory surveillance and imprisonment. Those behind sites that generate more than 250,000 hits will be treated as “very severe” and could face life imprisonment.

Linking the jail sentence to the number of hits, now that is a saddening use of optimal punishment theory. Here is the full story.

How about a $10,000 class for teaching top executives how to cope with prison? Students are taught the following:

1. Learn meditation and physical exercise routines.

2. Get used to the fact that nothing changes and everything is outside your control.

3. Discard your addictions and vices.

4. Bring a cheap watch.

5. Never make eye contact with anyone; no one is your friend.

6. “If you are going to hurt somebody, drag them into your cell, because then you have an excuse that they invaded your privacy.”

Here is the full story. The entrepreneurs claim they have had twelve clients a year for the last two years.