May 2012

Today one presidential aspirant joined a growing list of senators in opposing U.S. ratification of the Law of the Sea Treaty. Taking as long as the opposition has to assert itself, this clearly was a difficult decision for these political leaders to step out on this matter, flying as it does in the face of one of President Bush’s “to do” items before he leaves office. The latter have an actual vote on the matter which appears likely (though by no means certainly) headed to the Senate floor this year. The former merely would have to live with LOST’s constraints and other fallout. If LOST is implemented as its opponents fear, this fallout will include a replication — only worse — of what we saw after Bush snubbed the International Criminal Court and Kyoto Protocol upon taking office, both of which were signed by President Clinton though only the former was unsigned by Bush (his treatment of the latter was for all legal and practical purposes no different than his predecessor, if rhetorically in stark contrast).

Whatever the motivations and difficulties underlying these decisions, they are the right ones. Much has been written about the principal reasons that LOST should remain among the more than 400 treaties signed by the U.S. but never ratified. In brief, these remain that: 1) LOST cedes far too much sovereignty to supranational governance, 2) this includes taxation, euphemized as “fee collecting”, authority, 3) elevating the level even of eco-governance to which we subject ourselves, specifically including sweeping authority to govern “land based pollution”, and 4) a binding tribunal and other dispute resolution ensuring that by the front door or back, the Kyoto agenda will be imposed upon the U.S.

The voting begins this week at the Senate subcommittee level.

The full Federal Circuit Court of Appeals has just rejected a challenge to an earlier ruling that the District of Columbia’s Prescription Drug Pricing Act is preempted by federal patent law. D.C. drug price-control law bans “excessive prices,” a vague term for which there is no specific statutory definition. It does, however, include a provision declaring that a drug price is presumptively excessive when it is “30% higher than the comparable price” charged in Australia, Germany, the United Kingdom, or Canada.

It also authorized lawsuits against pharmaceutical manufacturers by any organization claiming to act “in the public interest;” “any person” claiming to be affected by excessive drug prices; any organization that represents such persons;” and “the District of Columbia” itself. In such lawsuits, lawyers for the prevailing parties would receive “attorneys’ fees,” while the plaintiffs would receive “treble damages,” and the D.C. Government would receive monetary “fines.”

The judges denied D.C.’s petition for rehearing en banc, with concurring and dissenting justices arguing about the intricacies of the Supreme Court’s preemption jurisprudence. Additional coverage of the case, called Biotechnology Industry Organization v. Pharmaceutical Research Manufacturers of America, can be found here and here.

Eli–Re your post on the Robosaurus, I like these better. The one above weighs about 104,000 lbs. and the one below 123,459 lbs. Just add a propane torch.

The moderately conservative Judge Thomas Meskill has died, eliminating one of the few non-liberal judges on the New York-based Second Circuit Court of Appeals.

This is a court still dominated by liberal Clinton appointees. And even some of the Bush appointees on the court are not moderate or conservative, but rather very liberal (like Barrington Parker, who believes that the Constitution provides elaborate protections for foreign terrorists, and who ruled that companies can be penalized by bureaucrats based on unproven accusations of environmental wrongdoing) or RINOs (like Peter Hall, an ideological heir of the party-switching Vermont Senator Jim Jeffords). Many of the Bush appointees were selected to appease liberal lawmakers in the region like Senator Chuck Schumer of New York. That may have an effect on terrorism-related cases and global-warming nuisance suits, since it cements the liberal judges’ en banc majority on the Second Circuit. In much of the country, Bush’s judicial appointments have been far less liberal than Clinton’s judges were, but in the Second Circuit, the difference is fairly small.

I earlier discussed Judge Meskill’s evenhanded approach to racial and sexual harassment law.

The other side of India’s boom is the corruption and lack of protection of rights for the poor. This story from NPR about a month long protest march for protecting the property rights of the poor gives a picture of India that you seldom see in the media.

If you have been to India, you might have passed through the roadside encampments outside the big cities, where nothing stays clean for more than half an hour, where people live, not paycheck to paycheck, but from hand to mouth. The people that live in these camps are domestic labor refugees from the poor states in India. They came to the big cities in the richer states to look for work.

These are the people that globalization, free trade, and more respect for individual rights will help.

Nice commentary by Jonathan Chait on Marketplace last week about the problem with farm subsidies.

Wealthy trial lawyer William Lerach, a big donor to liberal politicians who specialized in bringing class action lawsuits, has pled guilty to giving kickbacks. But under the terms of his guilty plea, he apparently will be able to keep most of his millions. Liberal politicians who oppose tort reform have received millions from Lerach and his cronies, and have been reluctant to return any of those donations.

Lerach gave kickbacks to class representatives, who then let Lerach run class-action lawsuits in ways that promoted Lerach’s interest, and not those of the nominal plaintiff class. A class-action lawsuit is supposed to vindicate the interests of a class of people, who are (except for the class representative) unnamed, but are legally considered a client to whom their lawyer owes a fiduciary duty. But in practice, it is often really the lawyer, not the class, that benefits from a class action lawsuit, with the lawyer receiving millions, while the class members receive worthless coupons. Indeed, Lerach once boasted that the great thing about his job as a class-action lawyer was that he had no clients.

Lerach’s lawsuits against corporations were typically harmful to their nominal beneficiaries, shareholders, since a “win” in one of his lawsuits just redistributed money from shareholders’ left pocket to their right, while siphoning off some of the money into the pockets of Lerach and his fellow lawyers. (When a corporation is forced to pay its shareholders, it does so by reducing the value of their shares — so what they receive comes out of their own pockets).

Many of the recipients of Bill Lerach’s largesse over the years have been liberal state attorneys general. CEI describes some of those contributions, and favors the trial lawyers received from AGs, in The Nation’s Top Ten Worst State Attorneys General.

As EU allows four more GMO crops (crops created with molecular plant breeding techniques), the new president of France puts a temporary “freeze” on planting GMO crops. A story from Norway says the agricultural area dedicated to GMO crops in the EU have increased 77 percent in the last year, with Spain taking the lead in adoption.

It appears that the Communist Party of China occasionally makes a mistake. Too bad millions of people already have paid a price and millions more are likely to get stuck with the bill as well.

Reports The Times of London: [click to continue…]