Legal Reform

Netflix series reveal injustice and junk science are plaguing our nation’s courts

true crime op-ed

With so many of us doing our part to stay at home, it’s been the perfect time to dive into binge-worthy Netflix series.

For many, it’s been Tiger King or reruns of Friends, but some of the more interesting series deconstruct the American justice system and its complexities: innocence or guilt, truth and facts, and institutional bias.

Because television series allow directors to carefully examine a story and interview dozens of witnesses and experts, audiences have become addicted to the very real characters dealing with tragedy and the inadequacies of our courts.

Shows such as “Making a Murderer” and “The Staircase,” in which their principal characters cling to innocence, inspired millions to ask the simple question: is the American legal system just and can it deliver justice? What happens when experts lead juries and judges astray?

It should be no surprise then that miscarriages of justice and tainted evidence, mixed in with biased scientific evidence, are not just fodder for documentarians but are represented in thousands of cases that don’t get their own TV deal.

Our binge sessions allow us to rummage through the hundreds of examples of “junk science” that has been taken for a fact before judges and juries, sending innocent people to prison or resulting in multi-million-dollar lawsuit settlements to tort injury lawyers. In “The Innocence Files,” it was a controversial “bite mark” analysis that sent an innocent man to death row for nearly 16 years. Earlier this year, Washington Post writer Radley Balko examined the very bogus forensic science that has plagued our nation’s courts: bite mark analysis, tire treads, ballistics evidence, carpet fibers, and more.

One tool our legal system has devised to counter bogus science, however, is the process of a Daubert standard, an eponymous process from a Supreme Court trial that seeks to classify expert testimony and evidence.

Daubert hearings empower judges to examine the gathering of evidence and whether it should be allowed in court cases. And this applies to broader scientific evidence beyond simple forensics. Balko mentions one D.C. judge’s Daubert ruling on ballistics specifically, calling into question the black-or-white conclusions such science could produce. That’s inspired lawyers around the country to ask for Daubert rulings in their cases.

One such example in the headlines is whether or not baby powder, an essential product for new moms and dads and a staple of the female hygiene industry, contains cancer-causing minerals such as asbestos.

Rulings on both sides have awarded up to $4.7 billion to plaintiffs suing pharmaceutical and beauty giant Johnson & Johnson. Select scientific evidence, and whether it can be admitted as evidence at trial, is at the heart of these cases.

To that end, a U.S. District Court in New Jersey is currently reviewing whether submittedscientific evidence that purports a link between talc, a main ingredient of baby powder, and various cancers should be allowed as evidence. Thus far, major independent studies have found no causal link, including evaluations by the American Cancer Society and a recent study from the National Institutes of Health.

But expert witnesses brought in by the plaintiffs have conducted studies that say the opposite. Some of those studies have yet to be peer-reviewed or replicated, but they’ve been admitted regardless. Which evidence will get the light of day? That is what the judge will have to decide.

In this civil trial, millions of dollars and reputations are at stake. In so many others, it’s the lives of innocent men and women.

As citizens, taxpayers, and consumers, one major concern with our justice system should be that only the most rigorous and reputable science be admitted as evidence. Only incontrovertible truth and seasoned scientific inquiry should sway juries, not evidence that can be easily debunked or will be easily refuted years later.

If we uphold that as our standard, we can strive toward the legal reform we truly deserve, both for those accused of crimes and those in the crosshairs of civil disputes. That’s the only way we’ll achieve true justice in our nation’s courts.

Originally published here.


The Consumer Choice Center is the consumer advocacy group supporting lifestyle freedom, innovation, privacy, science, and consumer choice. The main policy areas we focus on are digital, mobility, lifestyle & consumer goods, and health & science.

The CCC represents consumers in over 100 countries across the globe. We closely monitor regulatory trends in Ottawa, Washington, Brussels, Geneva and other hotspots of regulation and inform and activate consumers to fight for #ConsumerChoice. Learn more at consumerchoicecenter.org

Netflix series reveal injustice and junk science are plaguing our nation’s courts

true crime op-ed

With so many of us doing our part to stay at home, it’s been the perfect time to dive into binge-worthy Netflix series.

For many, it’s been Tiger King or reruns of Friends, but some of the more interesting series deconstruct the American justice system and its complexities: innocence or guilt, truth and facts, and institutional bias.

Because television series allow directors to carefully examine a story and interview dozens of witnesses and experts, audiences have become addicted to the very real characters dealing with tragedy and the inadequacies of our courts.

Shows such as “Making a Murderer” and “The Staircase,” in which their principal characters cling to innocence, inspired millions to ask the simple question: is the American legal system just and can it deliver justice? What happens when experts lead juries and judges astray?

It should be no surprise then that miscarriages of justice and tainted evidence, mixed in with biased scientific evidence, are not just fodder for documentarians but are represented in thousands of cases that don’t get their own TV deal.

Our binge sessions allow us to rummage through the hundreds of examples of “junk science” that has been taken for a fact before judges and juries, sending innocent people to prison or resulting in multi-million-dollar lawsuit settlements to tort injury lawyers. In “The Innocence Files,” it was a controversial “bite mark” analysis that sent an innocent man to death row for nearly 16 years. Earlier this year, Washington Post writer Radley Balko examined the very bogus forensic science that has plagued our nation’s courts: bite mark analysis, tire treads, ballistics evidence, carpet fibers, and more.

One tool our legal system has devised to counter bogus science, however, is the process of a Daubert standard, an eponymous process from a Supreme Court trial that seeks to classify expert testimony and evidence.

Daubert hearings empower judges to examine the gathering of evidence and whether it should be allowed in court cases. And this applies to broader scientific evidence beyond simple forensics. Balko mentions one D.C. judge’s Daubert ruling on ballistics specifically, calling into question the black-or-white conclusions such science could produce. That’s inspired lawyers around the country to ask for Daubert rulings in their cases.

One such example in the headlines is whether or not baby powder, an essential product for new moms and dads and a staple of the female hygiene industry, contains cancer-causing minerals such as asbestos.

Rulings on both sides have awarded up to $4.7 billion to plaintiffs suing pharmaceutical and beauty giant Johnson & Johnson. Select scientific evidence, and whether it can be admitted as evidence at trial, is at the heart of these cases.

To that end, a U.S. District Court in New Jersey is currently reviewing whether submittedscientific evidence that purports a link between talc, a main ingredient of baby powder, and various cancers should be allowed as evidence. Thus far, major independent studies have found no causal link, including evaluations by the American Cancer Society and a recent study from the National Institutes of Health.

But expert witnesses brought in by the plaintiffs have conducted studies that say the opposite. Some of those studies have yet to be peer-reviewed or replicated, but they’ve been admitted regardless. Which evidence will get the light of day? That is what the judge will have to decide.

In this civil trial, millions of dollars and reputations are at stake. In so many others, it’s the lives of innocent men and women.

As citizens, taxpayers, and consumers, one major concern with our justice system should be that only the most rigorous and reputable science be admitted as evidence. Only incontrovertible truth and seasoned scientific inquiry should sway juries, not evidence that can be easily debunked or will be easily refuted years later.

If we uphold that as our standard, we can strive toward the legal reform we truly deserve, both for those accused of crimes and those in the crosshairs of civil disputes. That’s the only way we’ll achieve true justice in our nation’s courts.

Originally published here.


The Consumer Choice Center is the consumer advocacy group supporting lifestyle freedom, innovation, privacy, science, and consumer choice. The main policy areas we focus on are digital, mobility, lifestyle & consumer goods, and health & science.

The CCC represents consumers in over 100 countries across the globe. We closely monitor regulatory trends in Ottawa, Washington, Brussels, Geneva and other hotspots of regulation and inform and activate consumers to fight for #ConsumerChoice. Learn more at consumerchoicecenter.org

Netflix Series Reveal Injustice and Junk Science Are Plaguing Courts

With so many of us doing our part to stay at home, it’s been the perfect time to dive into a binge-worthy Netflix series.

For many, it’s been “Tiger King” or reruns of “Friends,” but some of the more interesting series deconstruct the American justice system and its complexities: innocence or guilt, truth and facts, and institutional bias.

Because television series allow directors to carefully examine a story and interview dozens of witnesses and experts, audiences have become addicted to the very real characters dealing with tragedy and the inadequacies of our courts.

Shows such as “Making a Murderer” and “The Staircase,” in which their principal characters cling to innocence, inspired millions to ask the simple question: Is the American legal system just and can it deliver justice? What happens when experts lead juries and judges astray?

It should be no surprise, therefore, that miscarriages of justice and tainted evidence, mixed in with biased scientific evidence, are not just fodder for documentarians but are represented in thousands of cases that don’t get their own TV deal.

Our binge sessions allow us to rummage through the hundreds of examples of “junk science” that has been taken for fact before judges and juries, sending innocent people to prison or resulting in multi-million-dollar lawsuit settlements to tort injury lawyers.

In “The Innocence Files,” it was controversial “bite mark” analysis that sent an innocent man to death row for nearly 16 years. Earlier this year, Washington Post writer Radley Balko examined the very bogus forensic science that has plagued our nation’s courts: bite mark analysis, tire treads, ballistics evidence, carpet fibers and more.

One tool our legal system has devised to counter bogus science, however, is the process of a Daubert standard, an eponymous process from a Supreme Court trial that seeks to classify expert testimony and evidence.

Daubert hearings empower judges to examine the gathering of evidence and whether it should be allowed in court cases. And this applies to broader scientific evidence beyond simple forensics.

Balko mentions one D.C. judge’s Daubert ruling on ballistics specifically, calling into question the black-or-white conclusions such science could produce. That’s inspired lawyers around the country to ask for Daubert rulings in their cases.

One such example in the headlines is whether or not baby powder, an essential product for new moms and dads and a staple of the female hygiene industry, contains cancer-causing minerals such as asbestos.

Rulings on both sides have awarded up to $4.7 billion to plaintiffs suing pharmaceutical and beauty giant Johnson & Johnson. Select scientific evidence, and whether it can be admitted as evidence at trial, is at the heart of these cases.

To that end, a New Jersey district court is currently reviewing whether submitted scientific evidence that purports a link between talc, a main ingredient of baby powder, and various cancers should be allowed as evidence.

Thus far, major independent studies have found no causal link, including evaluations by the American Cancer Society and a recent study from the National Institutes of Health.

But expert witnesses brought in by the plaintiffs have conducted studies that say the opposite. Some of those studies have yet to be peer-reviewed or replicated, but they have been admitted regardless. Which evidence will get the light of day? That is what the judge will have to decide.

In this civil trial, millions of dollars and reputations are at stake. In so many others, it is the lives of innocent men and women.

As citizens, taxpayers and consumers, one major concern with our justice system should be that only the most rigorous and reputable science be admitted as evidence. Only incontrovertible truth and seasoned scientific inquiry should sway juries, not evidence that can be easily debunked or will be easily refuted years later.

If we uphold that as our standard, we can strive toward the legal reform we truly deserve, both for those accused of crimes and those in the crosshairs of civil disputes. That’s the only way we’ll achieve true justice in our nation’s courts.

Originally published here.


The Consumer Choice Center is the consumer advocacy group supporting lifestyle freedom, innovation, privacy, science, and consumer choice. The main policy areas we focus on are digital, mobility, lifestyle & consumer goods, and health & science.

The CCC represents consumers in over 100 countries across the globe. We closely monitor regulatory trends in Ottawa, Washington, Brussels, Geneva and other hotspots of regulation and inform and activate consumers to fight for #ConsumerChoice. Learn more at consumerchoicecenter.org

Battle of the Experts: Judge tosses portions of testimony in J&J talc trial

For the last year, we’ve dedicated a good amount of space in our campaigns advocating for significant reform when it comes to both the U.S. tort law system and the science that is used in courts.

With most courts closed due to COVID-19, that afforded us an opportunity to better dive into one case that’s grabbing headlines: one of the many talc lawsuits against Johnson & Johnson, which we’ve written about before.

Plaintiffs in multiple lawsuits claim their baby powder products contained elements of asbestos in the talc, the main ingredient in hundreds of cosmetic products, food additives, and lubricants, and therefore can cause cancer.

Because these lawsuits have been inundated with scientific testimony from all sides, a judge in a Federal District Court in New Jersey held a Daubert hearing, examining the methodologies and credibility of the science presented in the case.

For those interested in countering junk science in the courts, this is a big one.

The Daubert opinion, written by Chief Judge Freda Wolfson, sheds a lot of light on the process of determining whether certain expert analysis can be entered as evidence for juries to consider.

In this specific case in New Jersey, all experts from the plaintiff-side who had part of their testimonies thrown out because their methodologies were questionable or they made claims they couldn’t back up. All defense witnesses will be heard without reservations.

Overall, there’s a lot of “Battle of the Experts” here, and it makes for fascinating reading.

There was a lot of debate about the strength of weakness of “epidemiological studies” – tell me if you’ve heard about those recently – and about whether expert witnesses were basing their testimonies on “subjective belief or unsupported speculation”.

Specifically, one of the main witnesses says talcum powder causes inflammation in certain cells, and then uses that to claim it’s carcinogenic. Chief Judge Wolfson torches him for his claim without causation.

“For all these reasons, the Court finds that Dr. Saed’s opinion that talc causes ovarian cancer is unsupported by the findings of his study—which can only arguably demonstrate that use of talcum powder causes inflammation in ovarian cells.”

Chief Judge Freda Wolfson, Daubert opinion, pg. 24

Second, because there was no transformation of the cell under experimentation, which is usually how we can prove a link to cancer, the judge called his conclusions “unreliable”.

What is more, Dr. Saed’s findings with respect to CA-125 further demonstrate that his opinion with respect to ovarian cancer causation is unreliable.

Chief Judge Freda Wolfson, Daubert opinion, pg. 56

The second main expert witness gets knocked down for producing scientific experiments that can in no way be replicated. The judge points out that each additional attempt at replication came up with a negative for asbestos, which is claimed to be the carcinogen in focus.

“Without that information, which is internally created by MAS, reproducing Dr. Longo’s test under the PLM would not be possible, and hence, the testing is unreliable…J-3’s PLM analysis was negative for asbestos for each sample.”

Chief Judge Freda Wolfson, Daubert opinion, pg. 23

It’s obviously very difficult for courts to examine and establish good science from bad science.

That’s why Daubert hearings are supposed to weigh methodologies, like disproven bite-mark analysis or tire tracks (as many Netflix series are now exposing).

A lot of junk science is taken as fact because it’s in the courtroom, and that’s wrong. That’s exactly what was explained to us last week on Consumer Choice Radio by Jerry Buting, the famed attorney of Steven Avery from the series Making a Murderer.

What we know is that science is a powerful tool to use in lawsuits that affect millions of consumers or innocent people’s lives, but it can be flawed and have bad consequences.

For that reason, we need good legal reform in each state’s tort system to ensure we can uphold good scientific evidence. Justice depends on it.

A full embed of the Daubert opinion can be found here:

Covid-19 will help us identify which regulations are holding back productivity and innovation

At a time like this, those of us who believe in free markets and limited government face challenges in justifying adherence to those principles. It is hard to argue against governments doing “whatever it takes” to combat the spread of the disease and save lives and livelihoods. In fact, as my colleague Christopher Snowdon set out in the Daily Telegraph last week, there is no need to make such arguments. There no inconsistency insupporting individual freedoms in normal times and acceptingcoercive measures by the state in a public health emergency.

Similarly, the massive expansion of the state comprised in the chancellor’s rescue package is broadly welcome for giving people the assurance they need that their homes, incomes and businesses will have some protection in highly unusual circumstances. However, there are many areas where reductions in government intervention should be urgently pursued. 

The New York Times reported that a biotech lab had carried out tests and identified cases of Covid-19 in the Seattle area, well before it was known that the virus had taken hold in the United States. The lab did not have the correct accreditations for this activity from the FDA and was ordered to cease testing. The regulators in the US have since relaxed their position on this, but the question must surely be asked, what was the purpose of the restriction in the first place and how can it be right that it applied so strictly that it actively worked against important research at a vital time?

Europe is also suffering under the burden of pointless bureaucracy in healthcare: the Consumer Choice Center has highlighted that 20 countries in Europe don’t allow online ordering of prescription medicines and 18 require even non-prescription medicines like paracetamol to be sold in pharmacies only. Thankfully the UK is not in the guilty groupof countries in either case, but we still have many regulations that are holding people back from getting the support that they need.

Some steps in that direction are being taken here. The Coronavirus Bill, published yesterday, gives the government emergency powers, but it also suspends various regulations, like the ban on recently retired doctors from returning to work more than 16 hours per week. It reduces the administration tasks and paperwork that health and care workers have to carry out – surely welcome at any time and not something that should take a global crisis to enact.

The Department for Housing Communities and Local Government has announced that planning rules will be relaxed so that pubs and restaurants can operate as hot food takeaways. These are the kind of rules that inspired the hashtag #NeverNeeded, urging Twitter users to identify regulations that are holding back efforts to counter the virus and were surely never needed in the first place. 

Health Secretary Matt Hancock tweeted that people and organisations should not feel restricted from doing what they need to do to help people because of data protection laws. This is an example of a regulation (the GDPR) that has been shown to be so badly formulated and poorly understood that people are not able to make decisions with certainty as to what is permitted without an ad hoc intervention from the secretary of state.

In my recent paper for the IEA, Rules Britannia, I noted that regulations are often put in place based on quite dubious cost/benefit analysis, and then not reviewed to see if they actually achieved their objective. The way in which regulations have been relaxed as a matter of urgency by governments around the world, in some cases after they have caused serious barriers in battling the spread of the virus, has highlighted this in stark terms. This is also why calls to impose ‘emergency legislation to remove “morally unacceptable” conspiracy theories’ from social media platforms should be resisted. Misinformation at this is time is deeply damaging, but a perception that government is controlling the media to hide things from citizens could be even worse. Knee jerk responses that unnecessarily curtail freedoms run the risk of being counterproductive, and such measures have a history of being be retained long after their original purpose has been forgotten.

When this public health emergency is over, we will need all of the productive capacity and innovation that free markets can provide to ensure that the economy recovers and there are jobs for people to go back to. Wealth is the strongest predictor of health in a society and free economies grow the fastest. If dealing with Covid-19 allows us to identify regulations that are holding back productivity and innovation in healthcare and across the economy as a whole we must not waste the opportunity to re-examine whether they were in fact ever needed.

Originally published here.


The Consumer Choice Center is the consumer advocacy group supporting lifestyle freedom, innovation, privacy, science, and consumer choice. The main policy areas we focus on are digital, mobility, lifestyle & consumer goods, and health & science.

The CCC represents consumers in over 100 countries across the globe. We closely monitor regulatory trends in Ottawa, Washington, Brussels, Geneva and other hotspots of regulation and inform and activate consumers to fight for #ConsumerChoice. Learn more at consumerchoicecenter.org

COVID-19 gives us the opportunity for legal reform

Public life is now at a standstill in the United States.

Millions are social distancing and staying at home to avoid further community spread of the novel coronavirus known as COVID-19.

It’s important to remain positive, but times are tough. Nearly 18% of American households are facing reduced hours or layoffs at work, according to a new NPR/PBS NewsHour/Marist poll. Plugging into the 24-hour news cycle and its doomsday predictions doesn’t give many good vibes either.

That said, some government institutions remain on the clock. Legislatures in New Jersey, Wisconsin and dozens of other states still have open sessions to piece together legislation to alleviate their constituents; police officers and mail carriers are still on the job; and hospitals and clinics are working overtime to heal the sick.

All these institutions have had to pivot to the situation at hand and focus on how to react to the effect of the pandemic.

Police officers in cities such as Philadelphia and Lansing, Mich., have been instructed to not pursue low-level nonviolent crime to concentrate resources on the coronavirus. District and federal courts have been shuttered across the nation to do the same, leaving criminal, civil and immigration cases hanging in the balance.

With a huge pause button pressed, what will be the effect on our legal system?

While judges and lawyers have been sent home, there remain thousands of major lawsuits on the docket that could shape much of our lives once all this ends. And that’s important to remember.

Perhaps during this time, we can evaluate what we’d like our nation’s courts to prioritize once they return to normal.

That’s especially important because for every bogus lawsuit about Amazon “price gouging” toilet paper or hand sanitizer companies overstating their claims for killing germs, there are other major trials featuring outright hysteria and moral panic that deny scientific evidence and could lead to sweeping negative changes.

Currently, there are dozens of lawsuits related to the tenuous connection between nicotine pod vaping devices sold by companies such as Juul, and the outbreak of lung illnesses that took place last year. The Centers for Disease Control and Prevention came out in December and clarified the injuries were caused by vitamin E acetate found in illicit cartridges, but tort lawyers have not been dissuaded. They hope juries will buy emotional arguments over the science.

The same can be said for cases considering whether Johnson & Johnson baby powder contained talc products laced with asbestos, a carcinogen.

One trial in New Jersey is reviewing whether one testimony claiming such will be considered credible scientific evidence, known as the Daubert standard. Multiple scientific studies have yet to prove a link between talc in modern baby powder and any cancer, but previous cases have awarded as much as $4.7 billion to plaintiffs and their attorneys.

Will the judge listen to existing scientific evidence or hired court “experts” who stand to gain from huge payouts?

These are the types of perverse incentives that exist in today’s legal system.

Talk of reforming both criminal justice and tort law have been top of mind for many legal researchers and policy advocates for the past few years, and for good reason.

Much like the anti-scientific tort cases outlined above, too many people have had their lives ruined by nonviolent offenses that have stunted their careers and limited their successes. This legal abuse swarms our legal system and leaves legitimately injured consumers and citizens locked out of the courts.

Not everything deserves to rise to the level of our courts and our legal instruments if there isn’t legitimate harm to our people and communities. It’s the same principle as police officers in Philadelphia and Lansing being instructed to avoid low-level arrests of nonviolent offenders.

When life picks up again, and we deconstruct how our institutions fared in a time of crisis, we will need to ensure important reforms are implemented.

We need tools and reforms to avoid abuse of our nation’s courts by overzealous attorneys and prosecutors alike. That’s a noble goal we can all agree on.

Originally published here.


The Consumer Choice Center is the consumer advocacy group supporting lifestyle freedom, innovation, privacy, science, and consumer choice. The main policy areas we focus on are digital, mobility, lifestyle & consumer goods, and health & science.

The CCC represents consumers in over 100 countries across the globe. We closely monitor regulatory trends in Ottawa, Washington, Brussels, Geneva and other hotspots of regulation and inform and activate consumers to fight for #ConsumerChoice. Learn more at consumerchoicecenter.org

COVID-19 gives us the opportunity for legal reform

Public life is now at a standstill in the United States.

Millions are social distancing and staying at home to avoid further community spread of the novel coronavirus known as COVID-19.

It’s important to remain positive, but times are tough. Nearly 18% of American households are facing reduced hours or layoffs at work, according to a new NPR/PBS NewsHour/Marist poll. Plugging into the 24-hour news cycle and its doomsday predictions doesn’t give many good vibes either.

That said, some government institutions remain on the clock. Legislatures in New Jersey, Wisconsin and dozens of other states still have open sessions to piece together legislation to alleviate their constituents; police officers and mail carriers are still on the job; and hospitals and clinics are working overtime to heal the sick.

All these institutions have had to pivot to the situation at hand and focus on how to react to the effect of the pandemic.

Police officers in cities such as Philadelphia and Lansing, Mich., have been instructed to not pursue low-level nonviolent crime to concentrate resources on the coronavirus. District and federal courts have been shuttered across the nation to do the same, leaving criminal, civil and immigration cases hanging in the balance.

With a huge pause button pressed, what will be the effect on our legal system?

While judges and lawyers have been sent home, there remain thousands of major lawsuits on the docket that could shape much of our lives once all this ends. And that’s important to remember.

Perhaps during this time, we can evaluate what we’d like our nation’s courts to prioritize once they return to normal.

That’s especially important because for every bogus lawsuit about Amazon “price gouging” toilet paper or hand sanitizer companies overstating their claims for killing germs, there are other major trials featuring outright hysteria and moral panic that deny scientific evidence and could lead to sweeping negative changes.

Currently, there are dozens of lawsuits related to the tenuous connection between nicotine pod vaping devices sold by companies such as Juul, and the outbreak of lung illnesses that took place last year. The Centers for Disease Control and Prevention came out in December and clarified the injuries were caused by vitamin E acetate found in illicit cartridges, but tort lawyers have not been dissuaded. They hope juries will buy emotional arguments over the science.

The same can be said for cases considering whether Johnson & Johnson baby powder contained talc products laced with asbestos, a carcinogen.

One trial in New Jersey is reviewing whether one testimony claiming such will be considered credible scientific evidence, known as the Daubert standard. Multiple scientific studies have yet to prove a link between talc in modern baby powder and any cancer, but previous cases have awarded as much as $4.7 billion to plaintiffs and their attorneys.

Will the judge listen to existing scientific evidence or hired court “experts” who stand to gain from huge payouts?

These are the types of perverse incentives that exist in today’s legal system.

Talk of reforming both criminal justice and tort law have been top of mind for many legal researchers and policy advocates for the past few years, and for good reason.

Much like the anti-scientific tort cases outlined above, too many people have had their lives ruined by nonviolent offenses that have stunted their careers and limited their successes. This legal abuse swarms our legal system and leaves legitimately injured consumers and citizens locked out of the courts.

Not everything deserves to rise to the level of our courts and our legal instruments if there isn’t legitimate harm to our people and communities. It’s the same principle as police officers in Philadelphia and Lansing being instructed to avoid low-level arrests of nonviolent offenders.

When life picks up again, and we deconstruct how our institutions fared in a time of crisis, we will need to ensure important reforms are implemented.

We need tools and reforms to avoid abuse of our nation’s courts by overzealous attorneys and prosecutors alike. That’s a noble goal we can all agree on.

Originally published here.


The Consumer Choice Center is the consumer advocacy group supporting lifestyle freedom, innovation, privacy, science, and consumer choice. The main policy areas we focus on are digital, mobility, lifestyle & consumer goods, and health & science.

The CCC represents consumers in over 100 countries across the globe. We closely monitor regulatory trends in Ottawa, Washington, Brussels, Geneva and other hotspots of regulation and inform and activate consumers to fight for #ConsumerChoice. Learn more at consumerchoicecenter.org

COVID-19 gives us the opportunity for legal reform

Public life is now at a standstill in the United States.

Millions are social distancing and staying at home to avoid further community spread of the novel coronavirus known as COVID-19. 

It’s important to remain positive, but times are tough. Nearly 18 percent of American households are facing reduced hours or layoffs at work, according to a new NPR/PBS NewsHour/Marist poll. Plugging into the 24-hour news cycle and its doomsday predictions doesn’t give many good vibes either.

That said, some government institutions remain on the clock. Legislatures in New Jersey, Wisconsin and dozens of other states still have open sessions to piece together legislation to alleviate their constituents; police officers and mail carriers are still on the job; and hospitals and clinics are working overtime to heal the sick. All these institutions have had to pivot to the situation at hand and focus on how to react to the effect of the pandemic.

Police officers in cities such as Philadelphia and Lansing, Mich., have been instructed to not pursue low-level nonviolent crime to concentrate resources on the coronavirus. District and federal courts have been shuttered across the nation to do the same, leaving criminal, civil and immigration cases hanging in the balance.

With a huge pause button pressed, what will be the effect on our legal system?

While judges and lawyers have been sent home, there remain thousands of major lawsuits on the docket that could shape much of our lives once all this ends. And that’s important to remember.

Perhaps during this time, we can evaluate what we’d like our nation’s courts to prioritize once they return to normal.

That’s especially important because for every bogus lawsuit about Amazon “price gouging” toilet paper or hand sanitizer companies overstating their claims for killing germs, there are other major trials featuring outright hysteria and moral panic that deny scientific evidence and could lead to sweeping negative changes.

Currently, there are dozens of lawsuits related to the tenuous connection between nicotine pod vaping devices sold by companies such as Juul, and the outbreak of lung illnesses that took place last year. The CDC came out in December and clarified the injuries were caused by vitamin E acetate found in illicit cartridges, but tort lawyers have not been dissuaded. They hope juries will buy emotional arguments over the science.

The same can be said for cases considering whether Johnson & Johnson baby powder contained talc products laced with asbestos, a carcinogen. 

One trial in New Jersey is reviewing whether one testimony claiming such will be considered credible scientific evidence, known as the Daubert standard. Multiple scientific studies have yet to prove a link between talc in modern baby powder and any cancer, but previous cases have awarded as much as $4.7 billion to plaintiffs and their attorneys. 

Will the judge listen to existing scientific evidence or hired court “experts” who stand to gain from huge payouts?

These are the types of perverse incentives that exist in today’s legal system. 

Talk of reforming both criminal justice and tort law have been top of mind for many legal researchers and policy advocates for the past few years, and for good reason. 

Much like the anti-scientific tort cases outlined above, too many people have had their lives ruined by nonviolent offenses that have stunted their careers and limited their successes. This legal abuse swarms our legal system and leaves legitimately injured consumers and citizens locked out of the courts. 

Not everything deserves to rise to the level of our courts and our legal instruments if there isn’t legitimate harm to our people and communities. It’s the same principle as police officers in Philadelphia and Lansing being instructed to avoid low-level arrests of nonviolent offenders.

When life picks up again, and we deconstruct how our institutions fared in a time of crisis, we will need to ensure important reforms are implemented.

We need tools and reforms to avoid abuse of our nation’s courts by overzealous attorneys and prosecutors alike. That’s a noble goal we can all agree on.

Originally published here.


The Consumer Choice Center is the consumer advocacy group supporting lifestyle freedom, innovation, privacy, science, and consumer choice. The main policy areas we focus on are digital, mobility, lifestyle & consumer goods, and health & science.

The CCC represents consumers in over 100 countries across the globe. We closely monitor regulatory trends in Ottawa, Washington, Brussels, Geneva and other hotspots of regulation and inform and activate consumers to fight for #ConsumerChoice. Learn more at consumerchoicecenter.org

Digital identity verification could present big opportunities for Ontario — but big risks, too

A proposed overhaul of Ontario’s justice system could set the province on track toward digital identity verification, the attorney general has hinted. 

Bill 161 would include changes to the Notaries Act to “allow for remote or virtual commissioning and notarization online.” Although the change would only happen “once appropriate data and privacy safeguards are put into place by regulation,” Attorney General Doug Downey indicated in a December interview with Law Times that he was interested in hearing feedback from the legal profession and examining what other jurisdictions are doing for “paving the way for online document verification and signing” in real estate and wills. 

When Downey announced the proposed changes to the Notaries Act, he cited David Clement, North American affairs manager at the Consumer Choice Center, who said it “makes the system more consumer friendly and more responsive.” Lena Koke, CEO and co-Founder of Axess Law, is also quoted by the office of the attorney general.

“This bill is a breakthrough needed to modernize Ontario’s legal system. Permitting online verification of an individual’s identity and legal documents will level the legal services playing field for all Ontarians,” she said in the press release. “No matter where a person lives, when they work, or what mobility or ability challenges they may face, they will soon be able to access the same high-quality legal services that are easily accessible in urban centres across Ontario.”

Downey’s announcement comes as companies like Oakville’s FCT — a title insurer and real estate services provider — team up with Toronto-based SecureKey Technologies for identity verification. SecureKey is best known for Verified.Me, which cross-checks traditional IDs, such as drivers’ licenses, with other secure services like banking records, without revealing any of the information to the third party.

The result, says SecureKey CEO Greg Wolfond, is more secure than simply checking a single form of ID. He says that the bar set by Verified.Me is appropriately high, given the importance and speed needed for big deals like mortgage transactions.

“I could do identity validation just by scanning a driver’s license and digital verification of the driver’s license. And I think that’s going to move us towards digital, faster, for sure. But it’s going to move us to fraud much, much faster. It’s not hard for someone to make a fake copy of a piece of plastic that is in their wallet,” he says.

“So how do we find a way to keep our consumer safer, where they can go places to share who they are and be trusted, but also make it harder for the bad guy to impersonate our customers? . . . . The existing system, I would say, is broken.” 

Wolfond notes that real estate scammers, in particular, are known to try and dupe lawyers, making it vital that the province use strong identity verification if the process moves online.  About 27.8 per cent of LawPro claims in 2018 were real-estate related, second only to litigation claims in volume.

“The problem with the old way of doing things is, number one, it puts a lot of burden on society. It takes a lot of time. It’s expensive, and it’s slow. And at the same time, susceptible to fraud,” he says. “And law firms today are already dealing with that . .  . . that’s costing lawyers and law firms and trusts, and it’s costing them real dollars.” 

Wolfond says Notarius is another type of service that’s been adopted by some legal groups, including the Law Society of Alberta and Chambre des huissiers de justice du Québec. The company claims to “ensure the legal reliability of an electronic document and confirm the identity and professional status of the signatory at the time of signing.” 

Either way, says Wolfond, multi-factor authentication of some sort is key.

“This is a really good idea, and we should do it,” he says of online verification. “My concern is, we have to do it right.”

Originally published here.


The Consumer Choice Center is the consumer advocacy group supporting lifestyle freedom, innovation, privacy, science, and consumer choice. The main policy areas we focus on are digital, mobility, lifestyle & consumer goods, and health & science.

The CCC represents consumers in over 100 countries across the globe. We closely monitor regulatory trends in Ottawa, Washington, Brussels, Geneva and other hotspots of regulation and inform and activate consumers to fight for #ConsumerChoice. Learn more at consumerchoicecenter.org

Why are juries awarding millions of dollars based on shoddy baby powder science?

There’s something amiss in our nation’s courts.

Just last week, a New Jersey jury awarded $750 million to four people who claimed baby powder products made by Johnson & Johnson had contributed to their cancer diagnoses.

In the end, that amount will actually be reduced to $186 million, a feature of New Jersey law that caps award amounts to five times the damages declared by previous rulings.

What’s amiss in this ruling is just how much the jury verdicts stray from actual scientific opinion.

Plaintiffs and their attorneys claim the company has knowingly sold asbestos-tainted talc in its baby powder for years, even though scientific studies have yet to prove a definite link between modern-day talc and any cancers.

The same has been echoed by the American Cancer Society, and the same conclusion was reached by a wide-ranging 2014 study published in the Journal of National Cancer Research Institute.

Last month, the largest-ever study on baby powder and talc was published in the Journal of the American Medical Association. It followed 250,000 women who used the product and found “there was not a statistically significant association” between using baby powder and any link to ovarian or other cancers.

Why, then, would the juries have sided against the science?

In the last verdict in a similar case, a St. Louis jury sided with Johnson & Johnson, finding no proof in the cases furthered by plaintiffs.

Others, though, have delivered record awards. But why?

It’s a combination of ambitious tort lawyers and misleading journalism.

Tort Lawyers and the Long Legal Pursuit

In the trial mentioned above, and in other cases I profiled in my article in the Miami Herald, attorneys specializing in injury cases have elevated what would otherwise be an open-shut case based on science to become a cause célèbre based on penalizing a large company with a familiar brand.

Indeed, the lawyers who argued this case against Johnson & Johnson made the company’s global revenue and its CEO’s compensation the baseline for compensation. It was the first trial in which J&J Chief Executive Alex Gorsky testified before a court.

In his final words to the jury, Panatier made it clear that the focus of their verdict should be on Johnson & Johnson’s conduct. “So when you think about the punitive damages, what number punishes and deters them, you’ve got to think in Johnson & Johnson terms,” he said, noting that Johnson & Johnson was a “$60 billion company.” “And you can make them pay attention. And that is an immense responsibility and it is an immense, immense task that you’ll have to try amongst the 10 of you to determine what that number should be.”

New Jersey Law Journal

What was missing from their core argument was any definitive proof that the plaintiffs were exposed to asbestos from the talc in the baby powder – or that this is how they contracted mesothelioma, a specific lung cancer.

An analysis provided by FDA and mineral experts last week could only conclude that the mineral products in question are likely too small to be adequately tested, and thus new testing would be required.

But again, that conclusion does not negate the various and recent studies that have found no connection between the baby powder and cancer.

Despite that, it hasn’t stopped leagues of injury lawyers from lining up to take their shot at winning a multi-million dollar verdict. More than 16,000 class-action plaintiffs have been assembled to sue the company in other jurisdictions.

The interest of injury lawyers, who receive sometimes up to 40% or more of the winnings, is quite clear.

Media Malpractice?

When it comes to reporting on the facts of these trials, the science is often downplayed in favor of convincing legal arguments and sensationalist headlines.

For news outlets such as Reuters and the New York Times, the decades of scientific studies are often overlooked – or at the very worst, neglected.

An oft-cited example is on the company’s cautious recall of thousands of baby powder products in October. But further tests concluded none of the batches of the company’s baby powder contained asbestos, a fact admitted by Reuters.

Most internal J&J asbestos test reports Reuters reviewed do not find asbestos. However, while J&J’s testing methods improved over time, they have always had limitations that allow trace contaminants to go undetected – and only a tiny fraction of the company’s talc is tested.

Reuters

As such, it’s difficult to prove what so many lawsuits and investigative allege. Not enough for scientific analysis, but maybe enough for a courtroom and a few headlines. Herein lies the issue.

In the reports of the baby powder cases, these products and cancer are too casually linked. At least according to the studies we have provided to us.

For real understanding about what’s in the products we use and consume, it’s best to adhere to the studies and academic literature. Of course, no one wants to use anything that could prove harmful to them, and consumers should always be wary.

But, in that case, shouldn’t we look to science for those answers rather than 12 men and women sitting in a jury box? Shouldn’t that be the standard we employ for all of the important health issues of our time?

That, along with many other reasons, is why we need true legal reform in this country. We cannot afford to allow real science to be voted away in jury boxes and courtrooms.

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