July 29, 2006
Lawyer Now CEO at Pfizer
In what is reported as a surprise move, Pfizer announced the appointment of Jeff Kindler as its new CEO. Kindler is an attorney and was most recently Pfizer's GC. Prior to joining Pfizer, he'd been at McDonald's and GE, and, before my time there, at Williams & Connolly in DC.
July 28, 2006
Discovery Granted in BSA Abuse Case
The Washington Supreme Court ruled that the Boy Scouts of America must turn over its files on alleged abuse over past decades as part of an ongoing lawsuit by three men alleging sexual abuse by a scoutmaster. The majority opinion received seven votes, affirming the lower court decision (written by one Judge Michael J. Fox, I observe), with the dissent getting two.
July 27, 2006
Tiffany & Co. has been fined by the CPSC for failing to report dangers with their teething rattles. Oops.
Regulation Through Litigation: Hooray...?
Wendy Wagner (Texas) has an interesting new SSRN paper, forthcoming in the Georgetown Law Journal challenging what is becoming conventional wisdom about the value of litigation in regulating dangerous products:
It is the prevailing wisdom among both the legal academy and the general public that the regulatory system is better able to ensure the safety of risky products than the tort system. In this article I argue that this is not always the case. Contrary to sharp criticisms of “regulation by litigation” propounded by leading academics such as Richard Epstein, Richard Reich, and Peter Schuck, tort litigation is sometimes the only way to encourage product safety, at least in settings where manufacturers conceal key information needed to evaluate product safety. Without this litigation, we might still be using products that we know now are exceedingly dangerous.
July 26, 2006
The Plame Suit
FindLaw has a good piece (somewhat calmer than a lot of the initial columns) by Matthew R. Segal about Valerie Plame and Joseph Wilson's suit against Scooter Libby, Karl Rove, and Dick Cheney. Segal's conclusion:
In the end, though, who is at fault for those costs? Plame and Wilson surely have resorted to an imperfect method of learning the truth only because, for the past three years, Administration officials have decided not to reveal it. (The Administration's secrecy must be particularly frustrating to those who believe that there was no vendetta to disclose Plame's identity and, consequently, nothing to hide.)
President Bush said in September 2003 that he wanted "to know the truth." And the public deserves to know it too--because Administration officials may have committed crimes, and, more fundamentally, because this case is connected to the justification for the war that costs us lives, and dominates our politics now....
* * *
In sum, there is indeed plenty to dislike about the lawsuit filed by Plame and Wilson. But there is also plenty to dislike about the conduct of the Administration officials whose failure to level with the public brought us to this point.
July 25, 2006
Big Dig Liability to State Limited
It's presumably gotten more press here than elsewhere, but there are, to say the least, some problems with the Big Dig project in Boston (beyond the problem that the $2.4 billion project became a $14.6
billion project). A chunk of concrete fell and killed a passenger in a vehicle a week or two back and now ever more sections are being closed off.
Total potential liability on the part of Bechtel, who was in charge of the project, to the state? $150 million. Nice contract terms if you can get 'em.
The Sun Is a Mass of Incadescent Gas and It Will Hurt You
The FDA has approved the use of ecamsule in a sunscreen. Ecamsule provides protection against UV-A, the lack of which is the basis for lawsuits (see here and here for earlier posts). It appears [PDF, search for "ecamsule"] that ecamsule is the same as meroxyl, which, as I noted in the second of my earlier posts, appears to already be available in L'Oreal products. So: I'm still confused.
July 24, 2006
Pressure at the FDA?
Last week, the Union of Concerned Scientists announced the results of its survey of FDA scientists (997 of whom participated):
Of the 997 FDA scientists who responded to the survey, nearly one-fifth (18.4 percent) said that they "have been asked, for non-scientific reasons, to inappropriately exclude or alter technical information or their conclusions in a FDA scientific document."
61 percent said that political appointees had improperly injected themselves into decisions and 81 percent supported better post-marketing monitoring.
The press release has links to related materials.
New SSRN Paper
Thanks to Andrea Peacock for posting last week. I hope to read her posts soon and respond some; I hope you enjoyed reading her material.
For your Monday morning reading pleasure, Kevin A. Kordana (Virginia, Law) and David H. Tabachnick (Virginia, Philosophy) have just posted On Belling the Cat: Rawls & Tort as Corrective Justice to SSRN.
Recent scholarship has argued that post-institutional theories of distributive justice, specifically Rawlsianism, are compatible with a principled commitment to corrective justice. We argue that however attractive on independent or pre-institutional moral grounds a principled commitment to corrective justice and its corresponding model of tort law may be, it is misleading to think that the Rawlsian post-institutional conception of distributive justice is, at the level of principle, consistent with such an independent commitment. We argue that holding the truth of a maximizing theory of distributive justice in conjunction with a principled commitment to corrective justice is inconsistent. The attempt to hold both positions as true may flow, we suggest, from an unjustified presumption about the compatibility of post-institutionalparticularly, maximizingtheories of distributive justice and other non-maximizing moral commitments which one might hold or view as appealing on grounds independent of one's commitment to distributive justice. In our view, the values enshrined in Rawls's two principles of justice (taken in lexical order) reflect the deontological features of Rawls's original position. The principles of justice themselves, however, once adopted, function as consequentialist maximizing principles, taken in lexical priority, in selecting between competing complete schemes of legal and political institutions. While the tension between the corrective justice and the utilitarian or wealth maximization conceptions of tort law has long been discussed and is well understood, the relationship between the corrective justice conception of torts and post-institutional theories of distributive justice (in particular, Rawlsianism) has only recently received sustained attention. Recent articles by Stephen Perry and Arthur Ripstein emphasize the compatibilityor even the necessityof corrective justice (i.e., as an independent component of justice) within the Rawlsian distributive scheme. We argue, contra this emerging view, that distributive justice, in particular Rawlsianism, conflicts at the level of principle with corrective justice, and that it is inconsistent to remain (as a matter of principle) independently committed to both, given the Rawlsian view of property. In short, our central claim is that Rawlsian ideal theory is best understood as adopting the consequentialist (outcome-oriented) theory of tort law.