Archive for the 'Legal Issues' Category

Jul 03 2017

Eroding Science Education in Florida

periodicFlorida just passed a bill designed to challenge the teaching of evolution, climate change, and other “controversial” science in the classroom. This represents the evolution of such laws promoted by those opposed to the teaching of evolution.

In the past century there have been a number of such state laws passed in the US, most of which have been struck down by Federal courts, including The Supreme Court, as a violation of the separation of church and state. These including banning the teaching of evolution, requiring the teaching of “creation science”, teaching the controversy, and teaching creationism’s alter-ego, Intelligent Design.

Essentially these are all attempts to force or allow schools to determine what is taught in the public school science classroom not by the current scientific consensus but by the prevailing religious beliefs of the community. The string of legal defeats has not stopped efforts to oppose the teaching of evolution. Rather deniers have simply tried to craft laws to get around the pesky first amendment.

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Jun 22 2017

Terrible Decision from the Court of Justice of the European Union

Published by under Legal Issues

EUcourtPerhaps the EU is trying to make the UK feel a little better about their Brexit vote. The highest court of the EU, the Court of Justice (is there another kind?) released a decision regarding a recent case in which a man blames his multiple sclerosis (MS) of the Hepatitis B vaccine.

The pronouncement was not a decision on this specific case, but general guidance for EU courts on how to evaluate evidence of a possible causal link between a product and alleged harm. I’ll discuss the general principles at stake first, and then the details of this specific case.

The current standard is that anyone claiming damage from a product has the burden or proof to demonstrate that there is a defect in the product and that defect caused harm. The current ruling deals with the threshold for meeting that burden of proof. They write:

“In the present case, the Court considers that the temporal proximity between the administering of a vaccine and the occurrence of a disease, the lack of personal and familial history of that disease, together with the existence of a significant number of reported cases of the disease occurring following such vaccines being administered, appears on the face of it to constitute evidence which, taken together, may lead a national court to consider that a victim has discharged his burden of proof. That could be the case inter alia where that evidence leads the court to consider, first, that the administering of the vaccine is the most plausible explanation for the occurrence of the disease and, second, that the vaccine therefore does not offer the safety that one is entitled to expect.”

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Feb 13 2017

Immigration and Crime

Prevalence-of-CrimeDoes legal or illegal immigration increase crime? That is an empirical question that should be answerable through rigorous research. Whatever the answer, it should inform our policy priorities and decisions. At the very least, if we are going to have a national conversation about immigration, the established facts should serve as common ground.

When you are done laughing (or crying) you might be interested to read about recent research into the correlation between patterns of immigration and various types of personal and property crime. Researchers have previously looked at this question by focusing on individuals – are immigrants more or less likely to commit crimes than native born Americans? Let’s consider that question first.

The research overwhelmingly shows that first generation immigrants, whether legal or illegal, are less likely to commit all types of crime at all ages than the native born. Interestingly, by second generation the statistics look more like native born crime rates, so it does not take long to assimilate in this regard. As an aside, this, of course, does not include crossing the boarder illegally itself, but it has been pointed out that being an undocumented immigrant is not a criminal offense, but a civil offence.

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Jun 27 2016

Senate Passes GMO Labeling Compromise

“You’re unhappy. I’m unhappy too. Have you heard of Henry Clay? He was the Great Compromiser. A good compromise is when both parties are dissatisfied, and I think that’s what we have here.”

– Larry DavidGMO_labeling-thumb

Senate Democrats and Republicans have reached a compromise on the issue of mandatory GMO labels. I am not happy with the outcome, but it could have been worse. Apparently pro-labeling advocates are unhappy too.

Last year the House passed a bill that would preempt mandatory labels. That bill stated:

(Sec. 101) This bill amends the Federal Food, Drug, and Cosmetic Act to require the Food and Drug Administration (FDA) to continue the voluntary consultation process established under the FDA’s “Statement of Policy: Foods Derived from New Plant Varieties.” In that process, the FDA evaluates a scientific and regulatory assessment provided by the developer of a food produced from, containing, or consisting of a plant that is a genetically engineered organism (GMO).

The FDA may require a GMO food to have a label that informs consumers of a material difference between the GMO food and a comparable food if the disclosure is necessary to protect public health and safety or to prevent the label from being false or misleading. The use of a GMO does not, by itself, constitute a material difference.

This was a reasonable bill, which acknowledges that the way a food is produced saying nothing directly about the safety or other properties of the end product.  A GMO can be perfectly safe, and a non-GMO can be unsafe.

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Jul 09 2015

New Zealand Ban on “Trolling”

New Zealand recently passed a law designed to outlaw cyberbullying and give victims a measure of protection. The intent of the bill good, and I agree that this problem may need some creative legislative solutions, but I don’t think this bill was well crafted. It further raises all the thorny issues of free speech.

The Telegraph reports:

The bill was introduced after a public outcry over the horrific “Roast Busters” scandal, in which a group of teenage boys from Auckland was accused of sexually assaulting drunk, under age girls and boasting about the acts on social media.

Public outcry is often a problematic motivation for new legislation. It motivates legislators to do something dramatic quickly, which does not lend itself to nuanced law. Of course this is a horrible crime and people should be outraged. The primary crime, however, was the sexual assault. Boasting about the crime later on social media rubbed salt in the wounds, but it would be a mistake to over-react to that aspect of the crime.

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May 19 2015

Federal Anti-SLAPP Statute Proposed

Americans cherish our free speech, enshrined in the very first amendment to the Constitution. SLAPP suits (strategic lawsuit against public participation) are a serious threat to that freedom of speech. We desperately need libel reform in the form of effective anti-SLAPP laws.

What I learned when I became the target of a SLAPP suit (that is still ongoing) is that anyone with money can take away your free speech at will. It works like this: if you express an opinion publicly that someone else doesn’t like because it is critical of them, their beliefs, their business, etc. then they can hire a lawyer and send you a cease and desist letter. You are now faced with a dilemma – take down your blog, article, podcast, video, or whatever and allow your free speech to be suppressed, or potentially face tens and perhaps hundreds of thousands of dollars in legal fees.

Except for those few states with effective anti-SLAPP laws (California, Washington, Oregon, Nevada, Texas and the District of Columbia – Florida just passed one which has not yet gone into effect), if you refuse to remove your free speech and you get sued, then expect to spend large sums of money and years of your life defending your rights. Here’s the thing – even if the case against you has zero merit and no chance of winning in the end, the lawsuit is a financial game of chicken. There is no way to shut the case down early. There is no bar for meritless cases.

The net effect of this is that if someone has money they can shut down your free speech at will. This, of course, has a chilling effect on free speech that can go way beyond the one instance of speech being targeted.

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17 responses so far

Apr 27 2015

Defending Children – See, That Wasn’t So Hard

Last year two similar cases in Canada came to public attention – both involved young girls with terminal blood cancer, but ones that are very treatable. Their cancers would almost certainly result in death if they go untreated, and yet they would have about an 85% chance of survival with standard treatment. Both girls were also members of the First Nations, natives with a history of not being treated well by the Canadian government.

In both cases the family wanted to seek “traditional” treatment instead of completing chemotherapy. However, the “traditional” treatment they were seeking was holistic garbage peddled by a charlatan (who is white, and not a native) in Florida, Brian Clement. Clement is not a doctor, but claims to treat cancer with the usual assortment of popular quackery today. Recently the state of Florida accused him of practicing medicine without a license, but they then dropped the case for unknown reasons. I guess Florida just doesn’t have the political will to protect the public from harmful nonsense.

Clement’s false hope has already claimed the life of one of the girls, 11 year-old Makayla Sault died of her leukemia in January. Her mother was literally lured away from continuing chemotherapy by the promises of Clement.

What is most interesting is that the Canadian courts had an opportunity to intervene and to protect these children. They failed with regard to Sault and it is now too late for her. The second girl, whose name is not public, also was allowed to forgo chemotherapy to pursue traditional Floridian quackery. In November 2014 Ontario court Judge Gethin Edward ruled that the family has the right to deny their daughter standard medical treatment. This was done to respect the rights of the First Nations. I argued at the time, while I understand this is a sensitive issue, the rights of a young girl to live trumps everything else in such cases, and I felt this was a profound failure on the part of Judge Edward.

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Apr 24 2015

The FBI, Forensic Science, and the CSI Effect

Published by under Legal Issues

The FBI recently acknowledged that over a two decade period prior to 2000 they used a flawed forensic technique in their investigations – hair analysis. As reported in the Washington Post:

Of 28 examiners with the FBI Laboratory’s microscopic hair comparison unit, 26 overstated forensic matches in ways that favored prosecutors in more than 95 percent of the 268 trials reviewed so far, according to the National Association of Criminal Defense Lawyers (NACDL) and the Innocence Project, which are assisting the government with the country’s largest post-conviction review of questioned forensic evidence.

That is shocking and disappointing, but I don’t think it’s an isolated case.

Our society has come to expect high tech investigative techniques, especially at the level of the FBI and in high-stakes criminal cases such as murder trials. This is partly due to shows like CSI which showcase such technology, and exaggerate the speed and precision with which forensic scientists can tease information out of trace evidence. This effect may even be affecting juries, who expect any murder trial to be accompanied by such evidence.

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20 responses so far

Apr 14 2015

FDA and Homeopathy

The skeptical community is abuzz with the announcement by the FDA’s announcement that they are reviewing the “regulatory framework” of homeopathic products and are open to public input. We have written about this at Science-Based Medicine, and as you can imagine, this is a serious topic of discussion among the editors.

Background

The FDA regulates food, drugs, medical devices, supplements, and cosmetics for the purpose of protecting the public health and safety. Congress created the FDA and determines its powers. In the 1938 FDA act, one Senator, Royal Copeland, who was a physician and homeopath, included in the bill that the provision that the Homeopathic Pharmacopeia of the United States (HPUS) would be included in the list of official drugs.

What this means exactly is that homeopathic products are automatically considered drugs by the FDA. Further, any new homeopathic product added to the HPUS in a supplement also counts. All homeopaths have to do, therefore, to get a homeopathic product listed as a drug by the FDA is write it down in one of their supplements to the HPUS. That’s it. No research is necessary, no assurance of safety or efficacy.

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21 responses so far

Mar 12 2015

Libel Reform – In the US

Published by under Legal Issues

After Simon Singh was sued by the British Chiropractic Association for libel, he used the opportunity to rally for libel reform in the UK. Simon won his suit, but defending his free speech was tremendously expensive. Fortunately for him, he had the resources to go the distance. Libel laws in England are especially bad, favoring the plaintiff and are ridiculously expensive – so much so that they motivate “libel tourism” in which someone sues someone else specifically in England for maximal effect.

At the time I thought I was lucky for the fact that the US has more rational libel laws. The burden of proof is heavily on the plaintiff, as it should be. In the US we take our first Amendment rights to free speech seriously.

Then, of course, I was sued, and I realized how wrong I was.

The problem with libel laws in the US is that the legal battle is more about who has money than who is right. If you want to shut down someone’s right to free speech all you have to do is sue them for defamation. There is no barrier to doing so. The defendant then has the option of either taking down their blog post, article, podcast, whatever and giving in to the demands of the person threatening to sue them, or face tens of thousands or even hundreds of thousands of dollars in legal fees to defend their free speech. What do you think most people are going to choose?

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