Civil rights lawyers (and others) sometimes express exasperation when they are sometimes denied decent hourly rates after winning trials against governments (or insurers that fail to honor policy obligations.) That group may be heartened by a new ruling from Judge Holderman of the Northern District of Illinois in a case arising from failure to provide anti-seizure medication to a state prison inmate. As reported by the Chicago Daily Law Bulletin, the civil rights lawyers were reasonably paid for a major win ($12 million of compensatory damages, and $1 million of punitive damages.):
This is an age of increasing specialization even as to civil rights. Thus, a new article in the Journal of World Energy Law & Business addresses civil rights in that sector. The article is by several European lawyers from ngos and Clifford Chance, and is titled: Human rights responsibilities in the oil and gas sector: applying the UN Guiding Principles, by Rae Lindsay, Robert McCorquodale, Lara Blecher, Jonathan Bonnitcha, Antony Crockett, and Audley Sheppard - J World Energy Law Bus. published 18 January 2013, 10.1093/jwelb/jws033The full article is behind this pay wall.
The abstract provides an overview:
What are the economics of discrimination ? Alex Tabarrock from Marginal Revolution put up the following thought-provoking post, and it's repasted here for further dissemination. Law and economics - they go hand in glove.
Here's a good idea - the ABA is assisting and promoting efforts to recruit lawyers and others to monitor protests at the NATO and G8 meetings. Set out below is the text of the email I received this morning from an ABA international law group.
The Office for Democratic Institutions and Human Rights of the OSCE (OSCE/ODIHR) is recruiting monitors for planned assembly observation activities in the USA. Monitored assemblies will include protests and demonstrations organized in Chicago and, potentially, in / around Camp David, on the occasion of the forthcoming NATO and G8 summits. The G8 summit will take place in Camp David on 18 and 19 May 2012. The NATO summit will take place in Chicago on 20 and 21 May 2012.
The monitors will be part of small teams, which will generally include ODIHR staff, who will report their observations on the conduct of and interaction between assembly participants, law enforcement agents, as well as other relevant state and non-state actors. The information gathered will be used to compile a comprehensive monitoring report and to identify gaps, as well as examples of good practice, in meeting international human rights standards on the freedom of peaceful assembly.
Monitors are required to possess:
- a good understanding of human rights and of principles of human rights monitoring, preferably with a focus on freedom of peaceful assembly; previous experience in assembly monitoring, and a good understanding of local laws and regulations relating to assemblies are desirable;
- good report writing skills in English;
- sound judgement and awareness of the risks posed by crowds and gatherings;
- ability to work as part of a team.
Monitors are expected to be based in or near Chicago, to be available between 16 and 21 May 2012 and, in order to ensure their impartiality, not to be affiliated with any of the protesting groups or organizations, or with any bodies involved in the policing and regulation of assemblies. They will receive a one-day briefing / training in Chicago (some monitors may be required to deploy in or around Camp David on 18 and 19 May). The total duration of the engagement will be between three and seven working days, including one day for report writing.
Monitors will receive a fee of 125 EUR/day (approximately 165 USD at the current exchange rate), including for time spent in training, briefings, debriefings, and report writing. Travel expenses to/from Camp David will be reimbursed, if applicable. Assembly monitoring may require working long hours, and/or outside normal office hours.
Individuals interested in being considered for the position of assembly monitors should send, by 15 April 2012, a brief cover email (specifying the exact dates of their availability), attaching a curriculum vitae and a short unedited writing sample to this address:
Pre-selected individuals will be contacted by ODIHR for a telephone interview.
The OSCE/ODIHR is the specialized institution of the OSCE dealing with elections, human rights, and democratization. The OSCE is the world's largest regional security organization comprising 56 States from Europe, Central Asia and North America. For more information about activities by OSCE/ODIHR on freedom of peaceful assembly, including a link to the ODIHR Handbook on Monitoring Freedom of Peaceful Assembly, please see:
The marvelous post pasted below is from Alex Tabarrok at the blog titled Marginal Revolution. He says it all so well, I've taken the liberty of repasting the post in toto. The original is here, and is followed by an interesting series of comments.
Posted: 02 Dec 2011 04:32 AM PST
Excellent news; yesterday the Ninth U.S. Circuit Court of Appeals issued a unanimous opinion stating that compensation for bone marrow donation, specifically peripheral blood stem cell apheresis, is legal because such donation does not fall under the National Organ Transplant Act (NOTA).
The case was simple and it’s outrageous that the government fought. In brief, a bone marrow donation used to require inserting a very big needle into the donor’s hip bone, a painful hospital-procedure often requiring general anesthesia. Today, however, donors typically do not donate marrow but hematopoietic stem cells which can be harvested directly from blood in a procedure that takes a little longer but is essentially similar to a standard blood donation. Compensation for blood is legal (blood is excluded as an organ under NOTA). The plaintiffs, led by the Institute for Justice, argued and the court agreed that there is no rational basis for outlawing one type of blood donation when a similar donation is legal.
I was shocked by the utter boneheadedness of one of the government’s arguments:
In other words, markets are forbidden just when they are most useful. It was in fact the patients with rare matches who brought this case. As the court noted:
The patients with the most common cell types can afford to rely on the kindness of strangers. You don’t need a lot of kindness when there are a lot of strangers. The patients who are most difficult to match need to leverage altruism with incentive. It’s a lesson with many applications.
Dread diseases are complex and, often, horrible. Coping with dread diseases requires massive attention and perseverance. To date, the nations, ngos and corporations of the world have achieved only modest progress towards coping with the causes, effects, costs and horrors of dread diseases.
This NYT story by Jim Dwyer illustrates some of the horrors and a depressing example of a profound failure of institutional coping with dread diseases. The story, however, also is a love story as it tells a small part of the powerful story of a determined and loving couple both afflicted with cerebral palsy. They are Edwin Morales and Noemi Rivera, and one has to marvel at all they've done and accomplished. Sadly, she recently died, prompting the story.
The story of Edwin and Noemi includes a small part of the history of how poorly the U.S. - like other nations - has dealt with long term disability and dread diseases. The story includes a "kidnapping" vignette which highlights a small part of the horror of a New York "health care" facility known as Willowbrook. Ultimately, the horrors of the Willowbrook story were told by Bobby Kennedy and others - see this Wikipedia entry for an overview. The telling of the Willlowbrook story was part of the path to civil rights legislation.
Set out below is Mr. Dwyer's brief telling of Edwin's parents "kidnapping" him to save him from Willowbrook:
"The youngest of eight, Edwin Morales was put around age 4 into Willowbrook, an infamous dungeon for the disabled on Staten Island. He almost never was moved from his bed. Older children were tied into chairs. By the time Senator Robert F. Kennedy visited in 1965 and publicly deplored the place, the Morales family had liberated Edwin.
“My parents kidnapped —” Ms. Laracuente began, then stopped to steal a quick glance around the funeral parlor. She continued in a whisper: “My mother had a friend with a van. We signed him out for a picnic on the grounds, and when we got there, pulled the van over, threw him in and never looked back. We were so scared the whole way.”
Mr. Morales’s problems fell under the broad description of cerebral palsy, which includes impairment to the nerves and muscles, and in his case, the withering of his right arm and both legs. It was during a long hospital stay for surgery that he met Noemi, who had similar conditions."
Reputation risk arises in so many ways. A few weeks ago, headlines announced that various Libyan government offices had been abandoned, and then rebels went through records. One set of records related to the Libyan regime spying on the email of its citizens. The headlines and stories identified a subsidiary (Amesys) of a well known French company (Bull) as apparently having supplied spying devices to the now unseated Gaddafi regime. Those records and headlines are now turning into would-be criminal and civil litigation in France. Opinio Juris has the story here, albiet brief. The would be litigation arises from a complaint by a human rights group - FIDH. A slightly longer version of the story is here at the FIDH website.
Aiding and Abetting Liability Under International - 4th Circuit's ATS Decision Attacked as Clearly Wrong
In this post (and others linked in it), Kevin Jon Heller at OpinioJuris continues to savage the legal analysis of US circuit courts as to international law standards for "aiding and abetting" liability. The criticism seems on point and powerful, but I'm certainly not an international law scholar. The big picture point here is that American lawyers need to recognize that the views of our courts are not necessarily representative of international law.
First, do no harm.
In litigation, some try to treat history as a science. But in the hands of most people, it's not, even if it involves medicine. Telling or teaching history depends on perspective, judgment, and extensive knowledge of then-extant practices and facts. Then the story-teller must choose which facts to present in the allotted time and/or space. For an example, consider the telling the history of John Charles Cutler, M.D., a man who ended up as Assistant Surgeon General in 1958.
Dr. Cutler died in 2003. At that time, a newspaper reporter wrote the following glowing story of a beloved professor:
Obituary: John Charles Cutler / Pioneer in preventing sexual diseases
Wednesday, February 12, 2003
By Jan Ackerman, Post-Gazette Staff Writer
Long before AIDS became an international health problem, Dr. John Charles Cutler led the way in trying to prevent and control sexually transmitted diseases around the world.
Dr. Cutler, a former assistant surgeon general of the U.S. Public Health Service, was part of a group that in 1944 worked out the ways penicillin could be used to treat syphilis.
As one of the founders of the Family Health Council of Western Pennsylvania in 1971, he worked tirelessly to find better ways to provide affordable reproductive health-care services to women who need them.
"He thought every person should have access to these services, regardless of income," said Richard Baird, acting president of the Family Health Council.
"To him, health was more than simply studying microbes. It was life," said Ravi Sharma, professor of demography at the University of Pittsburgh Graduate School of Public Health.
Sharma said Dr. Cutler looked at the study of health in a "holistic" fashion, relating it to social, political, economic and cultural customs.
"He was a pioneer who had firsthand experiences of living and working in the Third World," he said.
Dr. Cutler, of Point Breeze, a retired professor at Pitt's Graduate School of Public Health, died Saturday at West Penn Hospital of pneumonia following a heart attack. He was 87.
His wife of 60 years, Eliese S. Cutler, said he was modest about his personal accomplishments but resolute in his mission.
Interviewed in 1988, Dr. Cutler told a reporter for The Pittsburgh Press that the AIDS problem was a replay of venereal disease scenarios of bygone years.
"The control of AIDS will come only when there's a shift from a preachy, moral approach to a medical viewpoint," he said.
"The kind of education that worked during World War II is needed again. The military services provided education about venereal disease and backed it up with making condoms and prophylaxis kits readily available."
Dr. Cutler was born and raised in Cleveland and graduated from Western Reserve University Medical School in 1941 with a Phi Beta Kappa key. In 1942, he joined the Public Health Service as a commissioned officer and remained active until 1967. During World War II, he was a medical officer on convoy duty in the Coast Guard.
His interest in the prevention and control of sexually transmitted diseases began in 1943 when he worked as a medical officer in the U.S. Public Health Venereal Disease Research Laboratory in Staten Island, N.Y. That led to his appointment to head a venereal disease research program for the Pan American Sanitary Bureau in Guatemala in 1948.
In 1949, the World Health Organization asked him to lead a venereal disease demonstration program for Southeast Asia that was based in India, which had won its independence from the British crown in 1947.
"There were 80 Americans in all of India," said Dr. Cutler's wife, who accompanied him there and to other international posts. She said her husband was always proud that he was able to raise the Indian flag in Simla, India, after the independence.
After returning to the States in 1950, Dr. Cutler continued to rise in rank until he became assistant surgeon general of the U.S. Public Health Service in 1958.
In 1960, he worked for the Allegheny County Health Department, organizing the final polio vaccination program in the Hill District. From 1961 to 1967, he was an assistant and then deputy director of what later became the Pan American Health Organization in Washington, D.C.
He returned to Pittsburgh for good in 1967 when he was recruited as professor of international health to head the population division in the Graduate School of Public Health at Pitt. In that post, Dr. Cutler was instrumental in getting funds for a major international health project in West Africa. With federal funding, he organized a program that enabled obstetricians and gynecologists from Third World countries to come to the United States for training in reproductive health technology.
He served as chairman of Pitt's department of health administration and was acting dean of the Graduate School of Public Health in 1968 and 1969.
Dr. Gordon MacLeod, professor of health policy and management at the graduate school, said Dr. Cutler had continued to return to the school on a weekly basis until a few weeks ago.
"He was a much beloved professor, both at the graduate school [of Public Health] and at the Graduate School of Public and International Affairs," MacLeod said.
In addition to his wife, Dr. Cutler is survived by a sister, Elizabeth Cobb of Manson, Wash.
Friends will be received at John A. Freyvogel Sons Funeral Home, 4900 Centre Ave. at Devonshire Street, Shadyside, from 7 to 9 p.m. today and one hour prior to an 11 a.m. memorial service tomorrow.
The reporter missed some facts, which at that time were buried. Here's today's Wikipedia entry for Dr. Cutler:
John Charles Cutler, M.D. (June 29, 1915 – February 8, 2003) was a senior surgeon, and the acting chief of the venereal disease program in the United States Public Health Service. He was involved in several controversial and unethical medical experiments regarding syphilis, including in Guatemala and the Tuskegee syphilis experiment.
He graduated from Western Reserve University Medical School in 1941, and joined the Public Health Service in 1942. In 1943 he worked as a medical officer in the U.S. Public Health Venereal Disease Research Laboratory on Staten Island.
Cutler oversaw the syphilis experiments in Guatemala in the 1940s, during which doctors deliberately infected an estimated 1500 Guatemalans, including orphans as young as nine, soldiers, prisoners and mental patients with syphilis without the informed consent of the subjects. This study not only violated the hippocratic oath but it echoed Nazi crimes exposed around the same time at the Nuremberg trials.
In 1954, Cutler was in charge of experiments at Sing Sing prison to see if a vaccine made from the killed syphilis bacterium, would protect prisoners against infection when he later exposed them to the bacterium. Those infected were later treated with penicillin.
Cutler became assistant surgeon general in 1958.
In “The Deadly Deception”, the 1993 Nova documentary about the Tuskegee experiments, Cutler states, “It was important that they were supposedly untreated, and it would be undesirable to go ahead and use large amounts of penicillin to treat the disease, because you’d interfere with the study.”
In 1967 Cutler was appointed professor of international health at the University of Pittsburgh, where he also served as chairman of the department of health administration and acting dean of the Graduate School of Public Health in 1968–1969. He died on February 8, 2003 at Western Pennsylvania Hospital inPittsburgh.
Now, even more of Dr. Cutler's history is being told as a US Presidential Commission discloses - and apologizes for - his human experimentation. The NYT includes this AP story. The commission's website is here.
The AP story includes the following excerpts illustrating the vast gulf between practices in the "civilized" worlds of the past and today:
"[The commission] revealed that some of the experiments were more shocking than was previously known.
For example, seven women with epilepsy, who were housed at Guatemala's Asilo de Alienados (Home for the Insane), were injected with syphilis below the back of the skull, a risky procedure. The researchers thought the new infection might somehow help cure epilepsy. The women each got bacterial meningitis, probably as a result of the unsterile injections, but were treated.
Perhaps the most disturbing details involved a female syphilis patient with an undisclosed terminal illness. The researchers, curious to see the impact of an additional infection, infected her with gonorrhea in her eyes and elsewhere. Six months later she died.
Dr. Amy Gutmann, head of the commission, described the case as "chillingly egregious."
During that time, other researchers were also using people as human guinea pigs, in some cases infecting them with illnesses. Studies weren't as regulated then, and the planning-on-the-fly feel of Cutler's work was not unique, some experts have noted.
But panel members concluded that the Guatemala research was bad even by the standards of the time. They compared the work to a 1943 experiment by Cutler and others in which prison inmates were infected with gonorrhea in Terre Haute, Ind. The inmates were volunteers who were told what was involved in the study and gave their consent. The Guatemalan participants — or many of them — received no such explanations and did not give informed consent, the commission said."
Today, there's little or no excuse for ignorance of facts because we have the Internet - the world's great access point. For example, care to see Dr. Cutler's work? Go here to the National Archives page with images of his papers. One can read here his 1947 correspondence.
As to changes in standards, consider an additional fact. The papers tell us and show us that the then-sitting Surgeon General was most interested in Dr. Cutler's work. And, according to this article, the papers include the following statement attributed to then Surgeon General Thomas Parran: “’You know, we couldn’t do such an experiment in this country.” (citing G. Robert Coatney to Cutler, February 17, 1947, Box 1, Folder 17, Cutler Papers.)
Conclusion? Ask lots of questions when investigating the past, and do not take anything for granted.
Opinio Juris brings another out of the ordinary post, this time from Kevin Jon Heller. This post calls attention to a proposed new law in China permitting detentions for up to six months. The post contrast China's proposed new law to international law prohibiting "enforced disappearance of persons." Here are key excerpts from the news article:
The Opinio Juris posts addressing civil rights are striking reminders of the value and relative rarity of the freedoms we enjoy in the United States. The posts also highlight the struggle to mesh concepts of law and justice with the varying conditions in different nations.
The international Bar Association is asking lawyers to speak out regarding the oppressive conditions imposed by the military regime in Burma. Set out below is the text of an e-mail circulated to IBA members as a call to action for lawyers to help in obtaining a UN Inquiry Commission into Burma. The bottom of the email identifies specific actions and resources, including providing template letters for lawyers to send to relevant government leaders.
Democracy and freedom require effort. Hopefully lawyers will make a difference.
Tort Settlement Secrecy - Can Government Lawyers Ethically Use Settlement Agreement Terms That Purport to Limit Future Use of The Settlement ?
Is it ethical for government lawyers to demand, or a plaintiff's lawyer to sign, a tort claim settlement agreement that includes terms that purport to limit the use of the settlement agreement in future litigation? "No" is the answer provided in this article addressing the issue in the context of government and private lawyers involved in tort and civil rights claims against the City of Chicago. The article is:
SETTLEMENTS YOU CAN'T SIGN: ETHICAL
IMPLICATIONS OF CHICAGO'S MACHINERY OF DENIAL
By Craig B. Futterman, Jason E. Huber, and Pier Petersen
The article is interesting and valuable in multiple ways. One is its discussion of the settlement secrecy actics formerly used by the City of Chicago, but now apparently abandoned. More value lies in its footnote 32 citation to laws around the US that in one way or another require public access to most settlement agreements arising from tort claims against the government. Also valuable is its closing reminder/discussion of the many cases in which courts have enforced similar unethical settlement agreement terms despite the seeming perversity of that result.
Hat tip to Jerry Crimmins for reporting on the existence of the article and other related background facts in a July 17 , 2009 article in the Chicago Daily Law Bulletin.
This article reports that China is taking away law licenses from and fining lawyers who have been filing civil rights claims and claims for victims of the "tainted milk" scandal. Reading this type of news certainly provides a moment to pause and reflect on how lucky we are in the US, and the great value of a free press able to report on developments and occurrences in our legal system.