Editorial Roundup: U.S.
Excerpts from recent editorials in the United States and abroad:
Nov. 9
The Wall Street Journal on federal judge's rulings in Ohio opioid trial:
The plaintiffs bar has assaulted too many industries to count, but the landmark opioid trial now underway in Ohio may be the worst. The combination of avaricious lawyers, a consolidated case system and a rogue judge is highlighting again the need for Congress and courts to crack down on legal abuse.
Cleveland-based federal Judge Dan Aaron Polster opened proceedings in October in a trial in which two Ohio counties are seeking to hold pharmacy chains CVS, Walgreens and Walmart liable for the opioid epidemic. The counties say pharmacies ignored red flags when they filled opioid prescriptions and caused a 'œpublic nuisance.'ť
The trial is the first of some 3,000 suits against companies in the pharmaceutical supply chain brought by municipalities that have joined with the tort bar to extort distributors and retailers. Johnson & Johnson and three distributors this summer settled various state and local government lawsuits for $26 billion.
The Ohio suits are in what's known as multidistrict litigation (MDL), a means of sandbagging industry into high-dollar settlements. The tort bar files hundreds of separate lawsuits in different jurisdictions, which the court system consolidates in the name of efficiency. MDL judges often single out test cases to gauge the merits of broader litigation. Too often the process becomes a club to beat corporations into sweeping settlements without a trial.
Judge Poster is wielding the club in the pharmacy litigation. Since landing this MDL in late 2017, he has pressured defendants to settle in the name of doing 'œsomething meaningful to abate the crisis.'ť 'œWe don't need a lot of briefs and we don't need trials,'œ he said in a 2018 hearing. 'œNone of those are going to solve what we've got.'ť That bias has informed the judge's decisions throughout the case.
The plaintiffs' claim is based on a bizarre notion of liability. The companies are accused of filling legal prescriptions for a legal substance for real patients from licensed doctors. The alleged tort is that they should have known they were filling out too many prescriptions, and should have been skeptical of even legal prescriptions above some undefined 'œred line.'ť
Yet pharmacists had no reason to know what this ineffable red line was. They also lack legal grounds to deny prescriptions. In many states they must fill prescriptions under penalty of law if the doctor has a valid license and is registered with the U.S. Drug Enforcement Administration. State medical and pharmacy boards have threatened to discipline pharmacists who refused to fill or watered down opioid prescriptions. Some pharmacists who refused have been sued by doctors for defamation and by patients for discrimination.
The plaintiffs attorneys are arguing that the pharmacists cannot hide behind state law and should have investigated the doctor's prescriptions. But if a tort can be committed for following the law, then we have entered a brave new world of liability.
Yet Judge Polster has allowed this liability theory to proceed, while pressing the companies at every turn to settle. In one outburst earlier this year, he threatened the companies with bankruptcy if they go to trial.
He has refused to include local, independent pharmacies in the trial, though their day will come if the big chains settle. He's also ignored the federal rules of civil procedure to give the trial bar an advantage, such as allowing them to amend their complaints by adding claims they previously disavowed. The Sixth Circuit Court of Appeals has rebuked several of his rulings, last year writing that one was 'œplainly incorrect as a matter of law.'ť
Judge Polster is undeterred. He has watered down the rules of evidence, including allowing trial lawyers to argue that all they need is 'œaggregate proof'ť that 'œtoo many'ť prescriptions were filled, rather than evidence of specific prescriptions that were improperly filled.
Last month a jury member admitted handing out personal research on the case to fellow jurors. The lead counsel for the plaintiffs agreed this was grounds for a mistrial. But Judge Polster prodded the lawyer to reconsider, since if he did order a mistrial he might retire and (hint, hint) hand the case to another (less plaintiff-friendly) judge. The trial continues.
This is grounds for appeal if there's a trial and verdict. But Judge Polster looks intent on producing a settlement, thereby pressuring the rest of the MDL defendants - including manufacturers and distributors - to settle too.
The opioid epidemic is a scourge, but it has multiple causes and is no justification for abusing the court system. If the pharmacy chains settle and establish this new precedent for public-nuisance litigation, there is no commercial activity in America that couldn't be vulnerable.
Courtrooms are venues to assess facts and the law. They aren't forums for policy making, or corporate retribution, or a federal judge to force a settlement on defendants as a capstone to his career.
ONLINE: https://www.wsj.com/articles/the-worst-tort-abuse-ohio-opioid-trial-judge-dan-polster-11636492713
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Nov. 9
The Guardian on Belarus and migrants - exploiting the vulnerable:
It is no surprise that a man who treats his own citizens so brutally should use others ruthlessly. Alexander Lukashenko, the president of Belarus, has jailed opposition leaders and arrested tens of thousands for protesting against last year's highly dubious election; many were beaten and tortured. Even in exile, his opponents fear him.
Now, in retaliation for the resulting European Union sanctions on his regime, he is 'œweaponising'ť vulnerable people. The European Commission has accused him of gangster tactics, encouraging people from the Middle East and Africa to come to Minsk in the belief it will be easy to enter the EU, and providing transport to the Polish border, where thousands now wait. Armed guards are reported to have forced many across, knowing that they will be rejected. In the words of one Syrian refugee: 'œWe are just an instrument to put the pressure on.'ť
Mr. Lukashenko's actions are cynical and despicable. But they are enabled by the cynicism of others. Thousands are at the border zone, with children and the elderly among those trapped in sub-zero temperatures with no food or shelter; eight people are known to have died of exposure in recent weeks, and aid workers believe the true figure is higher. Yet Poland is treating the arrival of these desperate people not as a humanitarian crisis, but an invasion.
It has declared a state of emergency at its border, deployed thousands of troops and changed the law to allow summary expulsions, ignoring asylum requests. It plans a Trump-style wall. It has refused to allow EU observers, humanitarian workers or journalists to enter the 3km zone. While Lithuania and Latvia earlier accepted EU help in dealing with crossings from Belarus, Poland has rejected such offers. Locked in conflict over the rule of law with Brussels, Warsaw is exploiting the migrants to capitalise politically on both anti-EU and anti-migrant sentiment and has gone to revolting lengths to demonise and smear them.
The bloc as a whole has its share of responsibility. Refugees make up only 0.6% of its 445 million population, compared with 4.4% of Turkey's 84 million population. But it has proved incapable of reaching a collective strategy as eastern countries like Poland shut the doors, wealthier northern nations claim the moral high ground while selectively taking small numbers, and arrival points in the south, such as Greece, say they cannot cope without substantial help '“ and turn to increasingly punitive responses. The UK, too, is increasingly hostile, with the government seeking to give Border Force staff immunity from prosecution if migrants die while they are pushing back boats. Such approaches and the accompanying rhetoric do not merely respond to political pressures; they fuel anti-migrant feeling.
In the short term, the EU may be right that putting pressure on airlines to halt the flights into Belarus, warning them they will face sanctions, may help to tackle the immediate problem. But it will not resolve the underlying issue that war and insecurity drive people from their homes, and more will be forced out in future. A fairer and more humane response across the continent is possible. Current events are further proof that it is essential.
ONLINE: https://www.theguardian.com/commentisfree/2021/nov/09/the-guardian-view-on-belarus-and-migrants-exploiting-the-vulnerable
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Nov. 6
The Houston Chronicle on the Glasgow climate summit, youth and hope:
Wearing a bird feather headdress fashioned for going into battle, Txai Surui, a young Indigenous woman from the Brazilian Amazon, stood at the podium at the United Nations climate summit in Glasgow on Monday delivering a message that met the moment's gravity.
'œThe Earth is speaking,'ť Surui said. 'œShe tells us that we have no more time.'ť
At 24 and delivering an eloquent speech that could shame most politicians, Surui powerfully demonstrated the urgency and moral clarity so many young people bring to the climate crisis, recognizing as they do that the planet their children will inherit is in peril.
Equally powerful was the example set by those who are not at the summit, which runs through Friday. They include leaders from some of the most powerful countries in the world - including the presidents of China, Russia, Mexico and Surui's native Brazil.
Yet Surui and other young activists such as Mexico's Xiye Bastida and Sweden's Greta Thunberg are far better climate change messengers than these absentee leaders. They represent the generation on whose shoulders it will soon fall to advocate for and eventually implement new policies and investments that delay, mitigate and adapt to climate change by the G-20 nations - which contribute roughly 80 percent of global greenhouse gas emissions.
Together they also represent a hopeful undercurrent of the world's climate response, which is making progress but at a pace scientists continue to warn is too slow to avert disaster. If the pace of that response is ever to increase, it will likely be as much due to these young people as to leaders now in office.
Even resolute calls for action by leaders at previous climate summits have been met back home with backsliding, temporizing and delay.
Despite President Joe Biden's restoring climate policy to the top of the American agenda after taking office in January, he still arrived in Glasgow all but empty-handed when it comes to major climate change legislation. The president's now-$2 trillion economic plan that would spend $555 billion on climate programs - the largest clean energy investment in U.S. history - is still languishing in Congress, even after compromises have scaled it down from $3.5 trillion.
One large reason? Sen. Joe Manchin, a West Virginia Democrat and chairman of the Senate Energy and Natural Resources Committee who also raised $400,000 from the oil and gas industry in the third quarter of 2021 alone.
Still, negotiations over the bill continue, and there are other, broader reasons for optimism.
Biden's first statements in Glasgow trumpeted his reversal of the foolish decision by his predecessor to pull out of the 2015 Paris climate accords, which, for the first time, required every country to submit a plan for curbing emissions.
The president has already made headway by announcing strong new Environmental Protection Agency regulations curbing methane emissions and launching a Global Methane Pledge - to slash such emissions by nearly 30 percent by the end of the decade - with commitments from nearly 100 countries. Biden also signed on to a pledge to reverse deforestation by restoring nearly 500 million acres of forest and other ecosystems by 2030.
Scientists say that to avoid disaster, the world needs to slow global warming so that the average temperatures won't rise more than 1.5 degrees Celsius above pre-industrial level by the end of the century. Before the Paris climate accord, temperatures were on track to rise 4 degrees. Clean energy, and even the shift from coal to natural gas made possible by the Texas-centered fracking boom, have helped put the world on pace to warm by just 3 degrees Celsius.
That's not good enough, but it's proof that public pressure and market demands have worked to bring about changes in nations such as the United States where government intervention has lagged.
Even Texas, a world capital for oil and gas and America's largest carbon emitter, has staked its claim as the nation's leader in wind energy. There is now enough wind and solar capacity in Texas to power nearly 10 million homes with a total of about $72 billion invested in clean-energy projects in the state as of the end of September.
That's good news for the next generation.
Long after the Glasgow summit ends, it will fall on its members to hold world leaders accountable for preventing the worst of the predicted consequences should we fail to slow global warming to within the 1.5-degree window experts now say is all we have. To succeed, young activists such as Surui, Bastida and Thunberg must continue to demand our attention and remind people across the globe of our collective promise to leave the world a better place than we found it.
It's an unfair burden - to ask young people who were not responsible for imperiling our planet to lead the charge in saving it. But, given the denial and inertia among older generations, they're the best hope we've got.
ONLINE: https://www.houstonchronicle.com/opinion/editorials/article/Editorial-The-most-hopeful-part-of-the-Glasgow-16596969.php
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Nov. 8
The Winston-Salem (N.C.) Journal on federal recognition for N.C.'s Lumbee Tribe:
Among all the issues facing our state and our nation, many of them contentious, there's one that has had significant bipartisan agreement for decades, yet still hasn't been resolved: full federal recognition for North Carolina's Lumbee Tribe. But with a little effort and luck, that could finally change.
Though North Carolina formally recognized the Lumbee Tribe in 1885, followed by partial recognition by Congress in 1956, the Lumbee have been struggling for about 130 years to achieve the status that would allow them to receive the federal services and benefits that other federally recognized tribes receive. Legislation has been introduced in Congress 29 times since 1999, but something always seems to gum up the works. They fell two votes short in the Senate in 1992.
We imagine it's beyond discouraging - it's frustrating.
But the Lumbee keep trying.
Last week, the U.S. House passed a bill, 357 to 59, in favor of federal recognition. The bill was sponsored by Democrat Rep. G.K. Butterfield, with both Republican Rep. Ted Budd and Democrat Rep. Kathy Manning joining the yeas. Now, the bill goes to the Senate, where Republican Sen. Richard Burr and Sen. Thom Tillis have long supported Lumbee recognition. They most recently sponsored a bill recognizing the tribe in April.
'œThe Lumbee Tribe has been fighting for more than a century to gain federal recognition and, as long as I'm in the U.S. Senate, I'm going to continue my work to make sure this happens,'ť Tillis said then.
'œDespite broad bipartisan support of this legislation over the last three decades, Congress has yet to act on this important bill. This has been a grave disservice to the Lumbee people and the rich culture the tribe contributes to North Carolina. It's time to get this done. I urge the Senate to swiftly pass this bill,'ť Burr said.
The Senate doesn't do anything swiftly, of course - but it's long past time to bring this one home.
The Lumbee is the largest tribe east of the Mississippi, with at least 55,000 members who live mostly in Robeson, Cumberland, Hoke and Scotland counties - not the most prosperous parts of the state.
Federal recognition would allow the tribe to acquire hundreds of millions of dollars in federal aid and also support the potential formation of a tribal reservation.
'œThis federal recognition will help the Lumbee people not only improve their economy, but enhance their health care systems and schools,'ť Burr said in April.
Their economic development would certainly benefit others in the poor and rural areas of Eastern North Carolina.
Despite support from both Republicans and Democrats - both former President Trump and current President Biden have said they'd sign the bill if it reached their desk - part of the reason recognition didn't pass in the past, as some legislators made plain, was simply because they didn't want to spend the money - money that the Lumbee deserve.
The Eastern Band of Cherokee Indians - the only federally recognized tribe in North Carolina - has also opposed recognition, fearing that the Lumbee might take a slice of their pie by opening a casino, as the Cherokee have done.
Previous iterations of the Senate bill have included a provision that would prevent the Lumbee from opening any sort of gambling operations.
The current bill doesn't have that provision, but if adding it assists passage, by all means, do so.
The Lumbee don't 'œlook'ť or 'œsound'ť like American Indians to some observers, who have questioned their authenticity. But they've had a distinct community centered mostly in Robeson County since the 1700s, with their own identity, including traditional surnames and a unique dialect.
'œWe know who we are,'ť the Lumbee's tribal chairman, Harvey Godwin Jr., recently told WRAL - a refrain repeated by many Lumbee - 'œbut we want the world to know who we are.'ť
Federal recognition would provide resources - and dignity.
It's long past time the Lumbee Tribe received it. Fully.
ONLINE: https://journalnow.com/opinion/editorial/our-view-the-lumbee-have-waited-too-long/article_2af39eb2-40bc-11ec-913d-3b741ddf177d.html
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Nov. 9
The York (Pa.) Dispatch on Penn State a decade after the Sandusky scandal:
Ten years ago, Pennsylvania was in a state of turmoil.
In November of 2011, the commonwealth's most high-profile college sports team and its largest university, not to mention a legendary head coach, were caught in the maelstrom of a child sex abuse scandal that rocked the nation and made headlines across the world.
A decade later, the aftermath of the Jerry Sandusky scandal still reverberates.
The main characters in the sad saga are either dead, in jail or no longer at Penn State.
Longtime PSU head football coach Joe Paterno died of lung cancer just 74 days after he was fired for his lack of action during the scandal.
Sandusky, a longtime PSU assistant football coach, is, justifiably, still in prison and is unlikely to ever get out. He was convicted of 45 counts of child sexual abuse.
The PSU president at the time, Graham Spanier, and two other administrators - former athletic director Tim Curley and vice president Gary Schultz - served time in jail.
Freeh Report and NCAA sanctions: The independent Freeh Report, commissioned by the PSU Board of Trustees, came out later and concluded that Paterno, Spanier, Curley and Schultz had actively concealed the allegations against Sandusky to protect the football program. It was a scathing condemnation.
Then the NCAA, using the Freeh Report as its guide, announced severe sanctions against the school and the football program. It levied a $60 million fine against PSU, banned the team from postseason play for four years and reduced its football scholarships for that span. It also vacated all of Penn State's football wins from 1998 to 2011, costing Paterno 111 victories, and put the program on probation for five years.
There was much talk at the time that the PSU football program deserved even harsher penalties.
That is the past.
Where do we stand: Fast forward a decade and where do we stand?
Well, the school and the football program have both made encouraging rebounds, thanks to actions taken by the university to address the failures that led to the scandal.
The entire $60 million was rightly spent in Pennsylvania on programs to treat and prevent child sexual abuse.
PSU instituted reforms to fight child abuse, sexual misconduct and unethical actions. Today, university officials stress that great progress has been made, including a code of conduct that anyone remotely connected with athletics must follow.
The NCAA was impressed enough with PSU's strides, including it willingness to follow the recommendations of the Freeh Report, that the sanctions were lifted early and Paterno's victories were restored.
On the field, first Bill O'Brien and later James Franklin followed Paterno as PSU head coaches and helped restore pride, dignity and success to the once-storied program.
Rising from the ashes: All in all, Penn State has risen from the ashes about as well as could be hoped. An epic organizational failure, which allowed the Sandusky scandal to happen, has been followed by reasonable success in making sure it doesn't happen again.
However, not everyone in Happy Valley is happy. Many still feel that Paterno was unjustly vilified and there is still a serious rift in the state between the Paterno supporters and those that feel he deserves culpability for the scandal.
That fissure may never be closed.
It can't happen again: Still, the Paterno legacy should not be foremost in our minds as we look back at the Sandusky scandal.
Our paramount concern should be with the young boys that Sandusky terrorized, and how we can make sure that such a horror never occurs again at Penn State or anywhere else.
ONLINE: https://www.yorkdispatch.com/story/opinion/editorials/2021/11/09/ten-years-after-epic-failure-psu-rises-ashes-sandusky-scandal/6348434001/
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Nov. 3
The Los Angeles Times on The Supreme Court and settling the 2nd Amendment dispute:
The 2nd Amendment to the U.S. Constitution is a mess, a muddle, a grammatically challenged pair of clauses that allows two or more readers to insist that it says two starkly different things, both of which are of life-or-death importance and each of which can be only partially defended.
To some, it is foremost the militia amendment, plainly referring to 'œthe people'ť as a collective entity and embodying a young, rebellious nation's mistrust of professional standing armies in favor of armed citizens banding together at times of crisis.
Yet to others, it is primarily the gun-rights clause, safeguarding an individual's right to keep and bear arms, notwithstanding the clear references to 'œthe security of a free state'ť and the lack of any mention of individual rights.
The drafters of the Bill of Rights were learned men who knew how to write, so there must have been some reason for them to submit these oddly assembled 27 words that give us such trouble today. They most likely disagreed over the place of firearms in American society. Was their primary and most contentious purpose to defend the nation (against foreign invaders, but perhaps also against the abuses of their own government)? Or was it for shooting squirrels for the dinner table (and defending against slave revolts and Indian uprisings)?
In its 2008 Heller decision, the Supreme Court upended a shaky but century-long (and quite reasonable) presumption that the 2nd Amendment applied to militias. Writing for the majority, Justice Antonin Scalia asserted that it guarantees an individual's right to have a gun at home, even if the purpose of having the weapon goes beyond joining the local militia in response to emergency.
That ruling opened up the prospect of an even greater proliferation of deadly weapons in what is already the most heavily armed nation.
Yet, like the drafters of the amendment itself, Scalia added his own clauses that are subject to multiple interpretations:
'œ(N)othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.'ť
In arguments to be heard Wednesday in New York State Rifle & Pistol Assn. Inc. vs. Bruen, the court considers whether it is constrained by Scalia's limitations and how far they reach. Can an individual be banned from carrying a firearm in public? Any individual, or adult citizens only? Anywhere in public? A street protest? An open-air City Council debate? A university classroom? The airport?
The case asks whether the state of New York should be able to grant or deny a permit to carry a firearm in public based on the applicant's asserted reason. Most applicants, presumably, are not readying themselves to join the local militia.
It's ludicrous, of course, to imagine the court solemnly opining that the gun rights enunciated in the 18th century prevent restrictions against openly carrying loaded firearms at a town hall meeting. Yet it's nearly as mind-boggling to realize that the court just might do that and expand upon the gun rights enunciated in Heller, in an era in which Americans fatally shoot their fellow citizens or themselves about 40,000 times each year, sudden and inexplicable mass killings are common, homicide is skyrocketing, and some urban areas feel like they're in perpetual lockdown for fear of gun crime.
In some parts of the country, people still do use guns to put food on the table, for sport or simply as an attribute of their lifestyle. Gun-toting behavior that would be natural and acceptable in, say, rural Pennsylvania, would be menacing and is wisely prohibited in downtown Los Angeles. For now. In issuing a ruling in the case currently before it, the Supreme Court may well strike down not merely New York's permit requirements but also California's, and those of the six other states that reserve the right to grant or deny permits based on the applicant's reason for wanting one.
States have long made their own decisions about how to balance residents' safety with their gun rights, based on the values expressed by voters at the polls and their representatives in the legislature.
But the Heller decision has taken us down a road that so far has no mileposts. The court may expand gun rights yet try to draw a line (at public parks but not public schools? Streets but not airports?), in an effort to preserve its own legitimacy as an institution apart from politics yet relevant to modern American life. Or it may try to limit itself to ruling just on the standards state officials use to confer or deny permits. In any event, it's odd to think that those 27 poorly assembled words leave people on all sides of the issue in such fear of one another, when they were intended to keep us free.
ONLINE: https://www.latimes.com/opinion/story/2021-11-03/gunfight-supreme-court