Archive for the 'Legal Issues' Category

Jul 27 2020

Prayer Is Not Medicine

The Alaska Supreme Court just reaffirmed a very important legal and ethical principle – declaring that prayer is not a replacement for medicine. While this may seem obvious to many, this is a critical legal decision. It will probably not have the downstream effect that it should, but it does highlight a vital reality.

The case involves Rachel “O”, who has been taking care of her mother, Tiffany “O”. Rachel states that because she graduated from a ministry school she is qualified to treat her mother solely with prayer, including her mother’s epilepsy, and emergency treatment. The essence of the ruling is this:

“If Tiffany required immediate medical attention, the results could be fatal,” the court concluded. “For this reason, while religious liberty is a fundamental right under the Alaska Constitution, the state’s actions in this case are justified by a compelling interest.”

Generally, when the Constitution or other laws establish that people have certain rights, the state cannot infringe upon those rights, unless the state has a “compelling interest” that is deemed by the courts to be greater than the infringement on individual rights. This is a balancing act, and can sometimes lead to controversial decisions. Eminent domain is an example – we have a right to property and the state cannot seize our property, unless they have a compelling public interest in eminent domain (they need to build a highway through your property). This is meant to balance public interest with individual interest. This became highly controversial because of the Kelo vs New London case, in which the Supreme Court expanded eminent domain to include the state’s interest in maximizing its taxation.

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Jun 01 2020

Junk Science in the Courtroom

In the last 20 years I have been called to jury duty several times. Every time I was dismissed almost instantly, once I made it known that I am a professional skeptic. Apparently lawyers fear that kind of skepticism on their juries (at least one side always did). The same is true of many of my skeptical colleagues, so I am not an isolated case. Once my brother said during the process that he wrote an article on the fallibility of human memory and eyewitness testimony. His but barely hit the seat when he was dismissed.

It is unclear how best to interpret these anecdotes, but what is clear is that justice requires facts and needs to align optimally with reality. Falsehoods and pseudoscience do not generally lead to justice. It is for this reason that courtrooms have elaborate rules of evidence, and generally they work well. Even in our adversarial system, you need to use generally valid arguments, you need to back up your statements with evidence, and there are rules of admissibility. Each side provides a check on the other, as a neutral arbiter presides over the process. It is imperfect (because imperfect people are involved) but at least it has a process.

One area where this process has historically had significant problems, however, is in forensic science, and the admissibility of science itself. The main problem, as I see it, is that it is based largely on authority, in both a good and bad way. Each side is allowed to find their own experts, and they can cherry pick experts whose opinion aligns with their needs. Often a non-expert jury is then tasked with sorting it out. There are standards for which expert testimony is admissible, and this has been a controversy unto itself. Here is a good summary:

Prior to 1993, the Frye standard for admitting expert testimony was the prevailing standard for guiding federal and state courts in their consideration as to whether scientific expert testimony should be admitted at trial. Frye v. United States[1]. The Frye standard requires that the proponent of the evidence establish the general acceptance of the underlying scientific principle and the testing procedures. Notably, Frye only applies to new or novel scientific evidence. However, in 1993, following a revision to the Federal Evidence Code by Congress, the Supreme Court of the United States annunciated the new standard in Daubert v. Merrell Dow Pharmaceuticals, Inc.[2] The Daubert inquiry was meant to be flexible and focused on scientific principles and methodology, not conclusions. The Daubert opinion emphasized that the Federal Rules of Evidence governed admissibility and suggested a series of factors a court could consider, but did not establish a test per se. Under Daubert, the admissibility of expert evidence rests squarely within the discretion of the trial court judge. In contrast to FryeDaubert applies to all expert witness testimony.

This article is about the fact that Florida has reverted to the Frye standard recently. This highlights the fact that legal precedent is largely how this is sorted out, and may differ for every state and at the federal level.

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Jan 16 2020

Anti-Vaxxers Strike Back

This is going to be a long struggle, perhaps endless. Antivaxxers have been around since there have been vaccines, for over two hundred years, so there is no reason to expect they are going anywhere. Rather, we need an equally permanent anti-antivaxxer movement (otherwise known as the skeptical movement).

After the Disneyland measles outbreak, there has been political pressure to push back against antivaxxers and strengthen our vaccine requirements. This resulted, for example, in SB277 in California, a law to remove personal beliefs as a reason for vaccine exemption. The return of measles in the last few years (1,282 cases in 2019 in the US, more than 140,000 worldwide) has fueled similar push back. But the antivaxxers have not taken this lying down. They are now fired up to defend their debunked conspiracy theories and pseudoscience at the expense of public health.

A recent clash in New Jersey shows the intensity on both sides. Bill S2173 narrowly failed in the senate amid vocal protests by the antivaxxers. The bill would have removed religious exemptions for vaccine requirements for schools and daycare. In order to save the bill, proponents amended it to apply only to public schools, but this only cost more support as some senators correctly pointed out this will only concentrate the unvaccinated in private schools and result in more outbreaks. Proponents of the bill vow to revise it and try again.

It’s clear that there is now intensity on both sides. One side, however, is completely wrong, something I rarely say but there are issues where this is clearly true. Antivaxxers claim, falsely, that vaccines don’t work, they cause more harm than good, they are linked to autism and other serious complications, and even that there is a corporate-government conspiracy to hide these facts. Debunking these claims will take many many articles, but fortunately I and my colleagues have already written them. You can look through here and also here for articles addressing pretty much every antivaxxer claim. But it is an unfortunate reality that there is always an asymmetry in these cases, because it takes much more time and effort to debunk a false claim than to make it in the first place.

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Jul 23 2019

Practicing Medicine Without a License Is Not Free Speech

Published by under Legal Issues

A federal court has recently affirmed that states do indeed have the right to enforce professional licensing laws. This may seem obvious, and I think it is, but lawyers for Heather Del Castillo (from the libertarian, public-interest law firm, The Institute for Justice), a “holistic health coach” based in Florida, argued in court that their client was protected by the First Amendment’s guarantee of free speech. Judge Casey Rogers of the US District Court for the Northern District of Florida rejected their arguments out of hand.

This is a very important ruling for anyone interested in science, skepticism, and professionalism. Had the ruling gone the other way, it would have been a disastrous precedent. Let’s review what the First Amendment does and does not guarantee.

First, you have to think about when a question of speech and censorship is a First Amendment issue at all. For example, if you get banned from a social media outlet because someone doesn’t like your speech, that is not a First Amendment issue. The First Amendment states, “Congress shall pass no law…abridging the freedom of speech…” This applies only to the government, both federal and state. So this affects how and when the government can censor, oppress, and punish speech. It has zero effect on private companies or citizens. The bottom line is that you have no right to speech in someone else’s private venue.

What about getting fired from your job for your speech? Nope, that’s not a First Amendment issue either, if you work for a private company and not any government. However, your employer may still run afoul of the Civil Rights Act or contract law. If you do work for the government, then the burden of proof shifts to the government. They can only discipline you for your speech if it interferes with your job or violates your contract or ethical guidelines of the job.

The First Amendment applies when government is involved in any way. If you get sued for libel, then that is a First Amendment issue. The government cannot shut down your newspaper because it doesn’t like your editorial policy. You cannot be arrested and jailed for your speech (with certain limits). Once we determine that a certain situation is a First Amendment issue we are not done, because freedom of speech is not absolute. There are certain very narrowly defined limits.

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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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