Tag Archives: Supreme Court

Supreme Court on Pfizer’s Pharmaceutical Colonialism

Victims and families protest outside the courthouse in Kano, Nigeria, in 2008. Photo: AFP.

While the media was chewing over the Supreme Court’s gun decision earlier in the week, another significant action passed with little comment. That was the court’s refusal to throw out a case brought under the Alien Tort Statute on behalf of Nigerians whose children died or suffered terrible damage in a Pfizer drug experiment.

The case is of considerable importance, because so many drug companies have conducted tests of new medicine’s abroad in poor countries, using the residents as lab rats in what some have dubbed “pharmaceutical colonialism.” The BBC reports:

The US Supreme Court on Tuesday declined to take up a case examining whether drug giant Pfizer could be sued in an American court for allegedly conducting nonconsensual drug tests on 200 Nigerian children in 1996. The action allows the case to move toward a trial. Eleven of the children died, and many others were left blind, deaf, paralyzed, or brain-damaged, according to court documents.

At issue in the Supreme Court appeal was whether the surviving children and relatives of the children were entitled to file a lawsuit in New York seeking to hold Pfizer responsible. Usually, such a suit would be filed in Nigeria. Lawyers for the children complained that Nigerian judges are corrupt and that the US court system holds the only promise of justice.

The suit was filed under the Alien Tort Statute (ATS), which empowers federal judges to hear civil lawsuits filed by non-US citizens for violations of the “law of nations.” Lawyers for Pfizer denied that the Nigeria experiments were conducted without the consent and knowledge of the children and their guardians. In addition, the lawyers argued that the children’s case should be thrown out of court because the alleged drug experiments are not the precise type of international law violation covered under the ATS. What made the high court appeal potentially significant is that the Supreme Court has declared that foreign plaintiffs may rely on the ATS to file lawsuits, but only in a few limited circumstances. The high court has not yet identified precisely which few cases may be brought and which may not.

For those interested in reading more on this grim subject, this long piece that appeared in Der Spiegel back in 2007 provides details on the Pfizer case. Sonia Shah’s 2006 book The Body Hunters uncovers other unethical drug trials throughout the developing world. And if you’re looking for some timely summer reading, John Le Carre’s 2001 book The Constant Gardener reimagines the story as a thriller, with Big Pharma cast as one of the leading villains of the post-Cold War world–which, of course, they are.

The Woodfox Judgement

Thanks to right-wing courts, the draconian sentencing guidelines passed by state and federal legislatures–and, believe it or not, the actions of Bill Clinton–the numbers of older prisoners in American prisons and jails is growing. More and more men and women have been given such long sentences that they will die in prison, and it’s become virtually impossible for most of them to mount appeals.

As one extreme case in point, yesterday the federal 5th Circuit Court of Appeals handed down a decision against Albert Woodfox, a member of the Angola 3. Woodfox, who is now 63 years old, has been at Angola since he was 34, and in solitary confinement for 38 years. Last night on Solitary Watch, Jean Casella and I posted this:

Albert Woodfox has spent nearly all of the last 38 years in solitary confinement at the Louisiana State Penitentiary at Angola. His case has brought protests from Amnesty International and Human Rights Watch, who argue that Woodfox’s decades in lockdown constitute torture, and from a growing band of supporters, who believe that he was denied a fair trial. For more than ten years, he has been fighting for his release in the courts. But yesterday, a ruling by a federal appeals court ensured that for the forseeable future, Albert Woodfox will remain right where he has been for nearly four decades: in a 6 x 9 cell in the heart of America’s largest and most notorious prison.  

Woodfox was given a life sentence–and thrown into permanent lockdown–for the 1972 murder of an Angola prison guard. He has been appealing his case for years, arguing that he was convicted in a patently unfair trial based on tainted evidence. In 2008, a federal district court judge agreed, and overturned his conviction. But the Fifth Circuit came down on the side of the state of Louisiana, ruling that Woodfox’s conviction stands.

It’s hard to believe this powerful federal court once was once a great defender of civil rights:

The Fifth Circuit Court of Appeals once had a reputation as one of the finest appellate courts in the land. In the 1960s, a small group of Fifth Circuit judges—mostly Southern-bred moderate Republicans—was known for advancing civil rights and especially school desegregation.  But today the Fifth Circuit, which covers Louisiana, Texas, and Mississippi, is seen as among the most ideologically conservative of the federal appeals courts. It is notable for its overburdened docket and for its hostility to appeals from defendants in capital cases, including claims based on faulty prosecution and suppressed evidence. The court has even been reprimanded by the U.S. Supreme Court, itself is no friend to death row inmates: In June 2004, Justice Sandra Day O’Connor wrote that the Fifth Circuit was “paying lip service to principles” of appellate law in handing down death penalty rulings.  

The Court’s rightward descent is set against a background of the unyielding Supreme Court–an institution that has clearly become an enemy of the people. But contrary to what liberals like to think, these problems did not begin with the Bush Administration. In doing their dirty work, the courts can cite legislation passed under Bill Clinton.    

I can well remember the first hint of what we could expect under President Clinton in the area of criminal justice. During the 1992 Democratic primary in New Hampshire, Hillary Clinton, in an  answer to a question  at a town meeting, suggested habeas corpus had been stretched beyond its bounds. Her husband proceeded to rectify this situation, with dire results for the rights of prisoners and the accused:

The decision in Woodfox’s case shows the crippling effect on prisoners’ rights of the 1996 Anti-Terrorism and Effective Death Penalty Act (AEDPA) which was passed under Bill Clinton in the wake of the Oklahoma City bombing. That legislation has become the bane of anti-death penalty lawyers and activists, and of thousands of other prisoners seeking to challenge their convictions–a pursuit which AEDPA now renders nearly impossible.  

As the Fifth Circuit noted in its ruling, “The AEDPA requires that federal courts ’defer to a state court’s adjudication of a claim’” unless the state court decision ran “‘contrary to…clearly established Federal law, as determined by the Supreme Court,’” or was ”‘based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.’” And as the judges pointed out, ”An unreasonable application of federal law is different from an incorrect or erroneous application of the law.” 

In other words, the state courts could be wrong, they just couldn’t be so far out as to be undeniably “unreasonable.” And in the end, the Fifth Circuit judges agreed with the State’s argument that in the case at hand, ”the district court failed to apply the AEDPA’s heightened deferential standard of review to Woodfox’s ineffective assistance claims.” Woodfox’s conviction may have been wrong, but it was not, in the eyes of the Fifth Circuit, “unreasonable”–so there will be no new trial for him. This is how justice works in post-AEDPA America.

The U.S. Government, Brought to You By Big Oil

Long may she wave: The flag of the United States of Oil

Oil companies have begun to “weigh strategies to fight off tougher regulations” in the wake of BP’s spill to end all spills, the New York Times reported earlier this week. Supposedly, the companies are nervous because of President Obama’s angry takedown of the oil industry last week, as well as rumblings in Congress, where there are now efforts “to extend bans on new offshore drilling, strengthen safety and environmental safeguards and raise to $10 billion or more the cap on civil liability for an oil producer in a spill.”

Frankly, I don’t buy it. I’m quite willing to believe, as the Times story says, that the petroleum industry’s lobbyists have kicked into high gear. But I can’t believe the companies are really all that worried. Ever since John D. Rockefeller founded Standard Oil in 1870, the federal government has pretty much given the oil men exactly what they wanted, when and where they wanted it–from oil depletion allowances to tariff protection to cheap leases on the federal public domain (which includes the outer-continental shelf in the Gulf of Mexico, site of the Deepwater Horizon disaster). Periodic government attempts to contain or regulate the industry have been little more than temporary annoyances, rather than major obstacles to Big Oil’s power or profits. This is hardly surprising, considering the kind of influence the oil companies wield at all levels of the U.S. government.

In 1911, for example, the U. S. Supreme Court found that Standard Oil, which was then controlling 85 percent of the industry, had violated anti-trust laws and conspired against the public good. “For the safety of the Republic,” the Court declared, “we now decree that this dangerous conspiracy must be ended” within six months. Standard Oil was broken up into a few dozen closely related smaller companies–the only result being that the nation’s energy lifeline was controlled by a cartel instead of a monopoly.

Another serious stab at regulation began in 1938 with the passage of the Natural Gas Act, which again tried to combat monopolistic pricing by giving the Federal Power Commission (predecessor to Federal Energy Regulatory Commission) the authority to set “just and reasonable rates” for the transmission or sale of natural gas in interstate commerce. In 1954, in the Phillips decision, the Supreme Court held that the federal government should also regulate the price of natural gas at the wellhead–that is, at the point where the gas comes out of the ground. For the better part of a decade, the government fiddled around doing nothing, but then in the early Kennedy administration, the FPC came up with an area pricing plan. Although the focus here was on gas, everyone knew it was a warning shot at the oil industry, which owned and controlled most of the natural gas. To price gas, it would be necessary to get at the oil industry internal documents, revealing such things as the amounts of reserves, costs, and the like.

Immediately, the big oil and gas companies warned we would run out of gas if prices were not raised to stimulate greater production. In 1974, during the (largely manufactured) energy “crisis,” the FPC took the first steps to undercut its own proposed regulations by giving in to industry and hiking prices. Under Jimmy Carter, the government began the formal process of deregulating gas, a policy which carried forward under Reagan and both Bush’s as part of the Republican right wing’s drive against regulation. Once the government gave in, the gas shortage disappeared and today we are supposedly awash with gas. All this was accomplished by industry manipulation of production and reserve figures—the same thing that has happened during all oil “shortages.”

In the wake of the BP disaster, it’s become abundantly clear that the oil industry itself has been writing the rules for offshore drilling, and not federal regulators at the Interior Department’s Minerals Management Service. “Nearly 100 industry standards set by the American Petroleum Industry are included in the nation’s offshore operating regulations,” McClatchy reported last month. “The API asserts that its standards are better for the industry’s bottom line and make it easier to operate offshore than if the Minerals Management Service set the rules.”  

The Washington Post reported on Thursday that the MMS approved “categorical exclusions’’ from environmental review for BP’s offshore wells in the Gulf, including the Deepwater Horizon. Congressional probes already suggest Minerals Management worked in collusion with BP and other oil firms to increase offshore production without regard to safety or environmental standards. Over the last month, the litany of MMS’s failures, and its more than “cozy” relationship with the oil industry, has been extensively documented by the press (including MJ’s Kate Sheppard, here and here).  With government oversight of this caliber, we ought to stop wondering how a disaster like the Deepwater Horizon spill could happen, and start wondering where it’s going to happen next.

Failure to devise any sort of meaningful regulation of the oil and gas business means that we really don’t know what the industry does, or where or how. Information on the country’s reserves are left in the hands of the companies, not the federal government. Since the US Geological Survey, which is supposed to map the public domain never had the money to do the job right, large parts of the public lands have not been thoroughly mapped by anyone but the companies that exploit it. Relying on industry data has resulted time after time in false information–as in the case of gas in the 1970s energy crisis–to inflate or deflate the amounts of oil and gas reserves.

Beyond failing at its own oversight function, the workings of the MMS also make it difficult for independent analysts to assess what is really going on. Earlier this week, a coalition of scientific societies underlined the problems in a letter to Interior Secretary Ken Salazar:  

Without a transparent and ethical process for dealing with scientific research and scientific conduct, the science that is performed at DOI may be called into question. This will not only harm the reputation of DOI, but will threaten the conservation of the nation’s treasured natural resources.  To ensure that science is being used properly to implement natural resource decisions, science should not be suppressed, scientific misconduct should be punished, and scientists who report suppression or other scientific misconduct should be afforded whistleblower protections.  Additionally, the science that informs natural resource decisions must be clear, transparent, and subject to independent peer review.

Such changes are unlikely to be implemented even in the wake of the BP spill. The secrecy surrounding federal energy policy was underscored by the confidential meetings organized by Dick Cheney with the oil and gas industry, as part of the Vice President’s “task force” to design a new national energy policy in the early years of the Bush Administration. Those meetings, the details of which remain hidden from the public—their confidentiality supported by the courts—are the most glaring recent example of energy policy formed in secret, and in collusion with the energy industry. In other words, in America, the oil companies not only write their own regulations and perform their own oversight; they also set energy policy and draft laws.

In addition to having their way with the executive and legislative branches of government, the oil companies have largely triumphed over the judicial system as well. Government policy plays into oil company interests not only by letting them do as they please, but also in limiting their liability when things inevitably go wrong. On “Meet the Press” last Sunday, White House energy advisor (and former Clinton EPA head) Carol Browner repeated the pledge that BP would pay all cleanup costs for the spill. This is true, as far as it goes, and BP too has promised to pay for the cleanup. But you can just see lawyers haggling in court over what constitutes a cleanup cost.

In addition to the outright cleanup costs, BP also  faces cost of  up to a total of  $75 million for damages not associated with the oil spill itself—such things as fishing and tourism. That amount would be woefully insufficient in this case. Finally, some of the $1.6 billion stashed in Oil Spill Liability Trust Fund could be spent in a cleanup. This fund is made up of industry taxes of 8 cents per barrel, and there is a cap of $1 billion on how much of that can be withdrawn. The House  recently undertook efforts to raise the cap and increase the industry taxes going into  the Oil Spill Liability Trust Fund. But since this Trust Fund is created by taxing oil, you can be sure that one way or another, the cost will be passed on to consumers, rather than coming out of oil company profits.  

Finally, the Supreme Court could decide to give a special parting gift to BP, as they did to Exxon following the Valdez spill. In that case, an Anchorage jury brought in a verdict of $5 billion in punitive damages against Exxon. In 2008, after nearly two decades of litigation, the Supreme Court reduced the damages to $500 million–a tenth of the original verdict. The decision, written by Justice Souter, cited ”the need to protect against the possibility…of awards that are unpredictable and unnecessary, either for deterrence or for measured retribution.” It’s hard to believe five Supreme Court Justices believed that $5 billion wouldn’t be a more effective “deterrent” to future negligence than $500 million. But apparently, the highest court in the land wanted to make sure that a jury of citizens didn’t go overboard in demanding responsible behavior from America’s favorite industry.

I Was Not a Victim of Age Discrimination at Work (Not)

When I was fired by the new owners of the Village Voice in 2006, after working there for 30 years, it had nothing to do with age discrimination. At least, that’s what the official documents say.  

For a number of reasons, I initially suspected that age had something to do with it. But I must have been wrong, because I later signed an agreement saying I had not been discriminated against on the basis of age. The document also happened to say that I would get some severance benefits I really needed, being 69 years old and suddenly jobless–but I’m sure that didn’t affect my decision to sign it.  

I have no doubt that the following scenario is experienced by thousands of older Americans who lose their jobs (though not, as I’ve mentioned, to me). They are pretty sure they know what is going on, and why. They discuss it with their attorneys, who are sympathetic but explain how difficult it is to prevail in such cases. The lawyers also tell them that the case could drag on for years–implying, though they don’t like to say so, that the geezers could be dead before it is resolved. So the geezers tell their lawyers to negotiate the best deal they can, and sign whatever they need to sign in order to get that deal. Or so I’ve heard. 

Age discrimination in the workplace (somethat that I, as I’ve said, did not experience), has always been notoriously difficult to prove to the satisfaction of the American justice system. But last June, the Supreme Court made it all the more difficult with its 5-4 ruling in Gross v. FBL Financial Services, Inc. The Court held that for workers to sue under the Age Discimination in Employment Act of 1967, they must prove that the employer would not have taken a particular action “but for” the person’s age. This sets age discrimination apart from all other forms of discrimination in the eyes of the law. As the New York Times put it in an editorial criticizing the Court’s decision:   

When employers discriminate, they generally do not admit it, so Congress and the courts have established calibrated rules of proof to give victims a fair chance. Generally, if workers can show that an illegal consideration, like race or national origin, was a factor in their being fired or demoted, the employer then has the burden of showing that it acted for nondiscriminatory reasons.  

That should be the rule under the Age Discrimination in Employment Act of 1967, but the Supreme Court, by a 5-to-4 vote, decided that it is not. Older workers, Justice Clarence Thomas declared for the majority, have the full burden of proving that they were fired because of their age. That is an unfairly difficult standard, and it is an unreasonable interpretation of the law.  

Last fall, the Democratic chairs of three key Congressional committees introduced legislation that would “restore vital civil rights protections for older workers in the face of the Supreme Court’s decision in Gross v. FBL Financial.”  In announcing the bill, called the “Protecting Older Workers Against Discrimination Act” (H.R. 3721), the sponsors stated: “In Gross, the Supreme Court rewrote civil rights laws, overturning well-established precedent and making it harder for workers facing age discrimination to enforce their rights.”   

Today, the Health, Employment, Labor, and Pensions (HELP) Subcommittee of the House Committee on Education and Labor held its first hearing on the Court’s ruling and the proposed legislation. As the Legal Times blog reports:  

The AARP is supporting the legislation, and Gail Aldrick, vice chair of the group’s board, also testified today. Those registered to lobby on the bill include the National Association of Manufacturers and the U.S. Chamber of Commerce.    

Eric Dreiband, partner in a firm that does corporate defense work, testified in opposition to the bill, calling it a “broad and ambigous” measure that would “enable some lawyers to earn more money” but probably wouldn’t help older workers all that much. 

But Michael Foreman, who directs the Civil Rights Appellate Clinic at Penn State’s law school, called the proposed legislation a “fair, balanced, indeed conservative attempt to return the law to where everyone, the courts included, thought it was” before the Gross decision.  

The final testimony came from Jack Gross, plaintiff in the case that bears his name. At the age of 54, Gross was demoted by his employer, FBL–along with a group of other employees over 50 who refused to accept buyouts. He initially won his lawsuit against FBL, but it was appealed up to the Supreme Court, which decided against him. Gross told the Committee: “I hate having my name associated with the pain and injustice now being inflicted on older workers.” 

In the unlikely event that Democrats succeed in quickly passing the new law, it won’t come a moment too soon. According to the Equal Employment Opportunity Commission, the recession has been terrible for older workers, who to all appearances have suffered more than their fair share of layoffs. In 2008, the EEOC saw a 30 percent increase in the filing of age discrimination charges, which outpaced all other types of bias claims. The numbers were so dramatic that the acting chair of the EEOC wondered whether “the public generally realizes that age discrimination is illegal.” 

It seems to me that even if they do know it’s illegal, much of the public–like the courts–don’t seem to take age discrimination too seriously.

But of course, I really wouldn’t know.

  

Granny D on Campaign Finance Reform

Doris “Granny D” Haddock won national attention when she walked across the country in 1999-2000, at age 90, to support the McCain-Feingold campaign finance reform initiative. The lifelong liberal activist from New Hampshire also ran for the Senate in 2004, was arrested at the Capitol for reading the Declaration of Independence, and authored a memoir entitled Granny D: Never Too Old to Raise a Little Hell.

On Sunday, her 100th birthday, Granny D issued the following plan to counteract the Supreme Court ruling on corporate campaign contributions:

If your brother-in-law has a road paving company, it is clear that you, as an elected official, must not vote to give him a contract, as you have a conflict of interest. Do you have any less of an ethical conflict if you are voting for that contract not because he is a brother-in-law, but because he is a major donor to your campaign? Should you ethically vote on health issues if health companies fund a large chunk of your campaign? The success of your campaign, after all, determines your future career and financial condition. You have a conflict.

Let us say, through the enactment of new laws, that a politician can no longer take any action, or arrange any action by another official, if the action, in the opinion of that legislative body’s civil service ethics officer, would cause special gain to a major donor of that official’s campaign. The details of such a program will be daunting, but we need to figure them out and get them into law.

Remarkably, many better corporations have an ethical review process to prevent their executives from making political contributions to officials who decide issues critical to that corporation. Should corporations have a higher standard than the United States Congress? And many state governments have tighter standards, too. Should not Congress be the flagship of our ethical standards? Where is the leadership to make this happen this year?

This kind of reform should also be pushed in the 14 states where citizens have full power to place proposed statutes on the ballot and enact them into law. About 70% of voters would go for a ballot measure to “toughen our conflict of interest law,” I estimate. In the scramble that would follow, either free campaign advertising would be required as a condition of every community’s contract with cable providers (long overdue), or else there would be a mad dash for public campaign financing programs on the model of Maine, Arizona, and Connecticut. Maybe both things would happen, which would be good.

How the Democratic Health Care Plan Could Really Work

Sam Smith in the Progressive Review (www.prorev.com) has come up with a lively idea for solving the health reform issue. Journalists, stumped by who’s for what when, should read this and then search for the conspiracy:

Central to the success of the Democrats’ healthcare plan is the fact that it massively subsidizes the health insurance industry through mandatory mandates and other devices. Neither the president nor anyone on the Hill has honestly reported the size of this subsidy but it is undoubtedly one of the largest earmarks ever enacted in return for campaign contributions.

Pleased with this, the insurance industry has agreed to accept numerous restrictions on their dubious past practices – which restrictions are, on their own, positive improvements in national healthcare. The unanswered question is: how much are we paying for these worthy improvements through subsidies to the industry?

Mulling this question, it occurred to me that there is one way this baroque, affair could end up on the clearly positive side. The bill is passed with its mandates and restrictions but someone sues on the clear grounds that mandatory insurance is unconstitutional. Remember, this is not auto insurance, where citizens do not have an inherent right to drive on public roads. This is a government order that citizens must pay a private firm for insurance just to live unharassed in America. There is nothing in the constitution that permits this.

So the bill goes to the Supreme Court which throws out the mandates. Voila. Totally against the intent of Obama and the Democrats we then have a decent bill, full of new restrictions on insurance companies without the cost of subsidizing them.

On the other hand, maybe this is Obama’s secret plan. If so, I’ll have to admit he’s a lot smarter than I thought.

Old Codgers on the Supreme Court Won’t Look Out for Their Own

In The Nation, Harper Jean Tobin discusses the “wave of federal court decisions in recent years has made it difficult and sometimes impossible for older Americans to enforce important rights, such as hard-earned pension benefits, freedom from age discrimination, access to long-term care, compensation for injuries caused by faulty medical devices and decent treatment in nursing homes.”

For example, the Supreme Court has turned the federal pension law on its head, eliminating virtually all remedies when employers deny benefits in bad faith. Since the Court has given them virtual immunity, employers are encouraged to play fast and loose with the law. Last December, the Supreme Court denied review in Eichorn v. AT&T Corp., a case in which the telecom giant engineered the sale of a subsidiary to eliminate the pension rights of more than 1,000 employees. While employees had the right under their pension plan to transfer to other divisions of AT&T and retain their benefits, AT&T effectively canceled those rights by promising its buyer not to rehire them. A federal appeals court acknowledged that the evidence showed a large-scale, intentional violation of law, but it nevertheless threw the case out, ruling that the law provided no remedies for the employees.

To make matters worse, the Supreme Court’s ruling this January in Stoneridge Investment Partners v. Scientific-Atlanta Inc. left public and private pensions more vulnerable than ever to securities fraud. When Enron tanked, pension funds lost tens of millions, yet Enron itself was judgment-proof. The Court shielded Enron’s equally culpable corporate collaborators from suit, cutting off the only realistic source of compensation.

All this, of course, is on top of the fact that most old folks have seen whatever retirement savings they might have shrink as the stock market tanks.

Considering the fact that the average age of the current Supreme Court justices is 68, you’d think they would do better. Then again, since they have jobs for life, if they want them, as well as government pensions and salaries over $200,000, geezers like Tony Scalia don’t have much to worry about.