Friday, December 13, 2019

Murum Aries Attigit, Y'all

Murum Aries Attigit, Y'all

Tell them boys they can have the statue and $2.5m… US dollars, that is.

This here case is a pretty good story.

It all starts in Orange County, North Carolina. Folks there, well, everywhere, say the wheels of justice turn slowly. But, a few weeks ago, Lady Justice traded in her robe and blindfold for a pair of short cutoff jeans, tossed her scales into the kudzu on the side of a dusty road, and grabbed the keys to a bright orange 1969 Dodge Charger. She jumped in one window and Mendacius rode shotgun. The two of them let out a cry that bystanders called “a foxhunt yip mixed up with sort of a banshee squall.”

She pushed the pedal to the metal and made those 426 cubic inches growl through Orange County (North Carolina, that is) at such a speed that I do say that ol’ road’s hills flattened and its curves straightened for her. She screeched on up back to the courthouse hoping to return before anyone noticed her joyride had taken her from her post. She skidded to a stop, but those wheels were spinning just a bit too fast for her to brake in enough time to avoid running right over poor Veritas, who ironically was waiting outside for her daddy – who always did seem to dawdle when he was in that building. Lady Justice crawled out of the car window and put her blindfold back on, lest she see with her own eyes the consequences of leaving her post to go on such a joyride. And while she blindly wept, Mendacius grabbed her robes and scales and ran right in that courthouse to set things just the way he liked em – dirty.

Now Mr. Doucette ain’t no Greek god, but he might be mistaken for one mythological figure – Mr. Clean. Acts like him too – at least in this story. He’s a lawyer in North Carolina now, but once upon a time, he was on the Board of Governors of the University of North Carolina (“UNC”).

Way back, more than a hundred years ago, a group of ladies went around calling themselves the United Daughters of the Confederacy and putting up monuments to that lost cause. Now this was pretty darn ironic, since General Lee, himself, believed memorials like this would just keep the wounds of the Civil War open. He famously said “I think it well, moreover, not to keep open the sores of war, but to follow the examples of those nations who endeavored to obliterate the marks of civil strife and to commit to oblivion the feelings it engendered.”. Well who am I to argue with Robert E. Lee?

I might not be nobody to argue with the General, but a bunch of folks down South didn’t have so much respect for what he wanted. And those former slaves around that time were getting a bit what folks called “uppity.” It was right about 1908 when the started the National Association for the Advancement of Colored People, or as you know it, the NAACP. They started asking for things like “rights” and “equality.” So those nice ladies went around with smiles as wide as their hats and didn’t have to work to hard to convince the powers that be all across the South to start putting up monuments to General Lee’s lost cause, and nobody paid any mind to what he said about ‘em.

Along came “Silent Sam” – a pretty tall feller made all out of bronze who these nice ladies with a not-so-nice mission got put right there at the front door to the University of North Carolina, in a position of honor. Now that was a pretty ironic kind of position for him to be in, since his mission was about as dishonorable as the soldier he represented. Where the real thing was there to preserve slavery, Sam was there to remind Black people that, if Joss Whedon will indulge me and forgive me, the Confederates might have been on the losing side, but they weren’t quite convinced it was the wrong one.

When they oh so ironically pulled the sheet off of Silent Sam in 1913, this KKK supporter named Julian Carr spoke from his heart, and told the crowd that the Confederate soldiers it honored had saved “the very life of the Anglo Saxon race in the South,” and told the following story:

“One hundred yards from where we stand, less than ninety days perhaps after my return from Appomattox, I horse-whipped a negro wench until her skirts hung in shreds, because upon the streets of this quiet village she had publicly insulted and maligned a Southern lady, and then rushed for protection to these University buildings where was stationed a garrison of 100 Federal soldiers. I performed the pleasing duty in the immediate presence of the entire garrison, and for thirty nights afterwards slept with a double-barrel shot gun under my head.”

Nobody really remembered that until about 2018, but about then someone dug it up. With a metaphorical flamethrower taken to the tale that Sam stood there as a solemn testament to “southern pride,” some people just couldn’t take looking at him anymore – so they got together and damn if they didn’t tear that statue right down. Now that might not have been the polite, legal, or gentlemanly thing to do. And, I’m not one for giving a pass to destroying art or public property. But, I can still say, with no insincerity at all, that I damn well understand.

It don't end there. You see there’s this group of good ol boys, call themselves the North Carolina Sons of Confederate Veterans. We’re sure that some of ‘em are pretty nice guys and they mean well. But, them all that run it, they’re still a bit put out that you can buy an old Dodge Charger in the Auto Trader, but there’s no similar publication to buy and sell yourself a Negro, if y’all is so inclined.

So let's fast forward to November 27, 2019 – when the Sons of Confederate Veterans filed a lawsuit, despite lacking standing to bring it, against UNC for its failure to put Silent Sam back in his place of honor. (check it out) Despite the fact that the plaintiffs lacked standing, seven minutes after the suit was filed, a state court judge approved a settlement between the parties. Whoooo-eeee! Thats there where I was talking about earlier with Lady Justice using all 426 cubic inches of that engine!

Well, in those seven minutes, the Sons of Confederate Veterans got themselves the Silent Sam statue and slap my ass and call me Sally if they didn’t also get $2.5 million United States dollars from the University too. Now if that don’t beat all! Seven minutes of a lawsuit, and a nice sweetheart deal with a bag o’ cash come just raining down on the Confederates!

The day the settlement was approved, the Sons’ “commander” Ronald Kevin Stone, announced this “victory” to thousands of his members – not all of whom agreed with it. Some of those boys who didn’t much like it, they sent Mr. Doucette the victory proclamation. Well you might be surprised to learn that the victory proclamation itself confirmed that this deal stank like the shithouse on a shrimper boat. The Commander himself admitted that the Confederates had no business suing the University, and his victory speech sure made it seem like that someone might have used a bit of impropriety, as they say, to convince Justice to take that joyride of hers.

Now Mr. Doucette thought everyone had a right to know, so he went on and put that victory proclamation right up on the glowin’ tubes of all of the Internets, just so you and me and everyone else could see what they’d done. But, the Confederates didn’t like that. They wanted their skulduggery done in the shadows. So what they did is say that the proclamation was a copyrighted work, would you believe it? They then got it all censor-iffic despite knowing full well they were no more in their rights than if they were firing on Fort Sumter.

Well, Mr. Doucette wasn’t takin that lying down. He gave those boys a chance to come to their senses. They didn’t.

Murum Aries Attigit, Y'all..

Copyright 2017 by the named Popehat author. https://www.popehat.com/2019/12/13/randazza-confederates-doucette/

Due Process for Tsarnaev – Demanded by a Masshole

Due Process for Tsarnaev – Demanded by a Masshole

By Marc J. Randazza

I want a new trial for Tsarnaev – because FUCK Dzhokhar Tsarnaev!

I don’t personally know anyone who got hurt in the Tsarnaev bombing. I don’t even know anyone who was in the zone of danger. Nevertheless, when I heard about the Marathon bombing, I wanted to cry and crush something at the same time. These motherfuckers bombed my home. It is as if they burned Paul Revere’s house, or bombed Fenway Park, or sank the U.S.S. Constitution, or put tomatoes in my chowder. It wasn’t just a bomb in a crowded place. This was a “fuck you, Boston” of biblical proportions.

I got this far into writing this, and it came back to me – that quickened breath, that pounding heartbeat, that desire to put my hands around Dzhokhar Tsarnaev’s throat and bash his head into his cell wall again and again and again so that the last thing that fucking prick hears is the sound of his own skull cracking mixed with my voice screaming at him.

That is what I, personally, want. And yet, I want him to get a new trial. I would never support a government that let me, or anyone else, enjoy my desired outcome.

I want him to receive the fairest trial, the greatest due process, and the kindest punishment that we can tolerate. If that happens to be death, so be it. Let even that death be without cruelty, violence, or anger.

If you are reading this, and at any point your reaction is “he does not deserve” whatever I may advocate for, well … keep reading, you might get smarter.

I don’t give a shit what Tsarnaev deserves. He deserves to be tortured. He deserves an agonizing death. He deserves to have watched his brother die. He deserves to be strapped to a table, with his ass up in the air, and then to be put right in the prison yard in the incorrigible rapist section of a maximum security prison, with everyone in that cell block informed that every time they violate him, they get a day off their sentence.

Yet, I care more about my Constitution than I care about my desire for hideous retribution. Justice is not just giving a bad guy what he deserves. Justice is also about limiting that desire for severe retribution. Justice is who stands in between the bad guy and the good people who want to do bad bad things to him. Because if we do not give Tsarnaev a fair trial and a righteous punishment, we can do it to anyone else. They can do it to you.

You see, I want to do worse things to Tsarnaev than Tsarnaev ever did to anyone else. I feel that if I did these things, if I let loose the savage instincts inside me, I would feel the bliss of no longer restraining that brutality and that hatred, and I would likely have the cover of it being seen, by many, as somehow justified. It may be justified – but it would not be justice.

Now imagine a jury pool made up of the kind of people who wanted to declare war on the Dominican Republic because a guy there shot David Ortiz. Literally every man in New England has given his wife or girlfriend a hall pass to have sex with Tom Brady. Even the most homophobic guy in Boston would suck Tom Brady’s dick while humming Danny Boy atop a float in the St. Patricks' Day Parade if Bill Belichick told him it was necessary to the Patriots’ being able to score in the red zone. If a defendant is a Yankees fan, that defendant probably should suppress that evidence because it would mean that at least one juror would immediately pronounce him guilty.

Yet, these bastards think that someone who blew up the Boston Fucking Marathon can get a fair trial in Boston?

Not only was he tried in the very place he fouled, but even the jurors were not clean. One of them tweeted out dozens of statements after the bombings, including “Congratulations to all of the law enforcement professionals who worked so hard and went through hell to bring in that piece of garbage.” If that’s how you start off as a juror, you’re not unbiased. Could we not find a juror who hadn’t openly expressed how he felt about the defendant? Maybe not in Boston, we couldn’t.

”Juror 138, meanwhile, posted about being called to jury duty on Facebook. Friends commented on his post, and hours after he’d been instructed not to, he continued to post about jury selection and the case. Posts included friends telling him to “play the part” and “get on the jury” to send Tsarnaev “to jail where he will be taken care of.” He replied with details about jury selection and being “ten feet” from Tsarnaev.

When asked by the court about talking or posting about the case, he said he hadn’t. (source)

They might as well have put a gag ball in Lady Liberty’s mouth and fucked her up the ass on the courthouse steps.

What makes it really offensive is that there was no reason to do it this way. The case was airtight. Tsarnaev wasn’t going to walk even if you tried him in the most Boston-hating jurisdiction in America. We moved Timothy McVeigh’s trial to Denver, despite the fact that he was never going to walk free no matter where they tried him. Why? Because when he got that needle put in his arm, we wanted it to be after he got every goddamned bit of due process that our system deserves. And, to this day, there is nobody who can seriously question whether McVeigh got a fair shake.

Tsarnaev’s execution will always be tainted if he does not get a new trial.

Justice is only served by due process. Without due process, without a fair trial, without removing even the appearance of impropriety, Justice is kept out of the room, and replaced with the remorseless goddess of revenge — Nemesis.

I love Boston not just because it is my home town, but because of what it stands for – it was the cradle of American liberty, if that means anything anymore. Tsarnaev attacked a symbol of that symbol. That left a wound that Nemesis can not heal. If we fail to keep Justice in the room, if we stain even the slightest bit of due process in seeking her divine guidance, then what the fuck is the point of these symbols? What the fuck is the point of the Revolution and the Constitution if we can't hold up due process right there, steps from where the whole damn conspiracy started?

Tsarnaev needs due process not because he deserves it, but because we deserve it.

Because when that piece of shit finally goes down, I want it perfect. I do not want Tsarnaev to go to his grave with one person able to credibly say that he deserves any second guessing or sympathy. I want him utterly and completely destroyed.

I want due process for him, not because I care about what happens to him. I want due process for him because that is the ultimate "fuck you" to him. And, as an added benefit, we keep Justice right where she belongs.

Copyright 2017 by the named Popehat author. https://www.popehat.com/2019/12/13/randazza-tsarnaev/

Thursday, September 19, 2019

All The President's Lawyers: No Bill Thrill?

All The President's Lawyers: No Bill Thrill?

This week: did a grand jury no-bill DoJ? Link here.

Copyright 2017 by the named Popehat author. https://www.popehat.com/2019/09/19/all-the-presidents-lawyers-no-bill-thrill/

Friday, September 13, 2019

Over At Crime Story, A Post About the College Bribery Scandal

Over At Crime Story, A Post About the College Bribery Scandal

Why do some big cases get investigated, and others don't? What makes the difference? Find out in my new column over at Crime Story.

By the way, Crime Story is worth your time. Kary Antholis — who comes from HBO — aims to increase knowledge of the criminal justice system through informed storytelling. Check it out.

Copyright 2017 by the named Popehat author. https://www.popehat.com/2019/09/13/over-at-crime-story-a-post-about-the-college-bribery-scandal/

Wednesday, September 11, 2019

All The President's Lawyers:

All The President's Lawyers:

This week: Flynn, Manafort, Congress, and Jacob Wohl! Link here.

Copyright 2017 by the named Popehat author. https://www.popehat.com/2019/09/11/all-the-presidents-lawyers/

Monday, September 9, 2019

Randazza: Nothing is Straight in Boston

Randazza: Nothing is Straight in Boston

By Marc J. Randazza

Boston was home to a "Straight Pride" rally. Unsurprisingly, a bunch of idiots showed up to protest the other idiots, and idiocy ensued.

Straight Pride Ralliers – Super Happy Fun America – Really? What is the point?

Yes, the straight pride group is really called "Super Happy Fun America." One could say "Super Gay Fun America" would be a synonym?

On one level, I'm ok with these clowns. That's what America is — the right to march down the street proclaiming whatever you want. I'm pretty proud to be a native Masshole – and part of that Masshole pride comes from the fact that Massachusetts was the first state to say "Dood, what the fahk paht of EQUAL do you not fahkin' undastand? If you can get married, so can the queahs if they wanna. Peary-id." See Goodridge v. Dept. of Public Health, 798 N.E.2d 941 (Mass. 2003).

Some have asked what the purpose of the parade was, but, that is beside the point. I don't like it when someone asks me why I want to have an AK-47. My answer is "because it is my constitutional right to, and that's all I have to say." Same with "why don't you want your home randomly searched?" Or, "why do you need to say this shit?" If the answer is "because it is my Constitutional right," then that's that.

Of course, you know the reason why there was a "straight pride" rally. There's the sorta dumb perspective of someone who does not understand why there might be a need for a "black pride" event, but a "white pride" event sends a really different message. If you're that stupid, go read something else. We're not going to wait for you to catch up.

Ok, fine… if the day comes that gay people kick the shit out of you for liking pussy… and you get arrested for enjoying pussy… and you maybe even get lobotomized or put in a mental asylum, and all of a sudden you're like "what the fuck, I WAS FUCKING BORN THIS WAY, LEAVE ME ALONE!" Yes, then maybe we might need a straight pride rally. Until then, lets chill.

But, the way shit is, we only "need" a straight pride rally because we "need" the entire texture of thoughts and ideas to be put in the marketplace of ideas. So, I wholeheartedly support these clowns right to beclown themselves.

The Counter-Protesters

Idiots too. Yes, I would like to invoke "The Inverse Charlottesville Speech Rule." That is when you say: "There were very dumb people on both sides."

If you want something so pre-discredited as a "straight pride rally" to fail, the best thing you can do is ignore it. Personally, I wish there could have been a very organized counter-protest where they just got 1,000 guys to put on sparkly sequined dresses and feather boas to watch, clap, and just yell "WE LOVE YOU, YOU'RE FABULOUS!" at the entire parade. That would have been a resounding victory for the pro-equality crowd. But, y'know, nobody fuckin listens.

So, those who got angry about this parade? Congratulations -they gave them at least part of their win. But, hey, you get to express their ideas too.

Along with them were the dipshits with the bandanas on their faces – trying to be all "we're just anti-fascists." No, they're fascists. Don't tell me that they're "anti-fascist" just because that is what's in the name. By that measure, The Democratic Republic of North Korea is a "democracy."

The Police

TThey arrested violent protesters, as they should — and maybe as they should teach their counterparts in Portland and Berkeley how to do. But, they also arrested non-violent protesters. And, since I haven't reviewed any of the film of those arrests, I'll give them a pass — civil disobedience might have its place, but you still might have to get a ride to the police station and a little bit of paperwork.

The DA

The Suffolk County DA is sorta awesome in this case, because she tried to drop all the charges against the non-violent protesters. But, things got weird.

Context: She has pledged not to prosecute "minor" crimes like trespassing, shoplifting, drug possession, and resisting arrest. On one level, I like that. I really wish that prosecutors would be a little more discerning in filling the prison pipeline. But, this is just might going to result in the "inverse broken windows" situation. Already, some dumbass decided he could shoplift with impunity because he heard about her policy. (source) Unfortunately for that dumbass, he didn't realize that he was shoplifting in a different jurisdiction. Oops.

The DA decided to drop all the non-violent charges connected to protests at the straight pride rally. I am going to presume she did this for an enlightened reason – that if a citizen is expressing him or herself in a non-violent way, then maybe we don't need to crush them with the weight of the state. I do question whether she would have done the same had the political polarity of the offenders been reversed. But, that's just a question right now. She has not yet had the opportunity to prove me right or wrong. So, let's give her the benefit of the doubt.

The Trial Judges

Every day, prosecutors walk into court and say "your honor, we would like to noll pros these charges." If the defendant does not want the charges to proceed (naturally) and the prosecutor does not either, then that's the end of the story. Even if the prosecutor is doing it for a bad reason (not that she was) then that's that. She is elected by the people. She speaks for the people. The people, through her voice, say "this person's conduct is ok with us, let it go."

But, two judges have said "LOL, no" (paraphrased). They refused to let the state drop the charges. (source)

To make things even weirder, the Prosecutor appealed to the Supreme Judicial Court to drop the charges. I have to say, I have never seen a case where a prosecutor appealed to try and let defendants off the hook.

And, the decision came down just a few minutes ago. FIGGITY FIRST, MUTHAFUCKAS!

The Decision – Commonwealth v. Roderick Webber

Supreme Court Justice Gaziano just issued his decision – and the result is no surprise – he upheld the prosecutor's discretion. Primarily, it was a separation of powers issue. Under Art. 30 of the Massachusetts Constitution, the prosecutor has exclusive jurisdiction over whether to prosecute a case or not. (Op. at 3).

The trial court judge apparently resisted because of the Massachusetts Victim's Bill of Rights, which gives a victim of a crime the right to have some input into dropping a case. The judge took the position that the victims were "Super Happy Fun America," whose First Amendment rights were impeded. (Op. at 4) But, Justice Gaziano disagreed — stating that in a disorderly conduct case, the "victim" is the Commonwealth of Massachusetts and not a particular citizen. But, even so, the trial court would have still lacked the authority to force the Commonwealth to press forward.

Justice Gaziano did specify that there were cases supporting some curtailment of prosecutorial discretion – but only if there is a "scandalous" misuse of authority. Nothing like that seems to be going on here.

Accordingly, all of the charges that the prosecutor sought to drop are dropped and the arrestee's record is expunged.

Conclusion

All in all, the chips seem to have fallen where they should – but not in a way that doesn't at least make me want to exercise a bit of vigilance.

I like that the state and city did not interfere in the parade, despite the fact that 90% of the community would have loved to see the Super Happy Fun America people rounded up and put in camps. The Commonwealth and the city of Boston seem to have protected the marchers' First Amendment rights.

Protesters got in the way a few times, and the police removed them. This is what the police should do – lest Boston become a "heckler's veto" city like Berkeley or Portland. The District Attorney seems to have done the right thing by using her discretion to only prosecute those who engaged in violent acts. And, while I was initially horrified at what the trial judge did, after reading the Opinion, I see the trial court's position: Think about another time and place — maybe Alabama during the civil rights movement. Imagine a group of locals wants to beat the shit out of some civil rights protesters, and the local prosecutor just says "no crime here." So, yeah, I would like to see some oversight of charges being dropped. But, if we do not respect the separation of powers, the judiciary can get out of control too. The judge is supposed to be impartial – not taking sides.

But, I do hope that if this kind of thing happens again, the politics of those involved is not the determinative factor.

Copyright 2017 by the named Popehat author. https://www.popehat.com/2019/09/09/randazza-nothing-is-straight-in-boston/

Thursday, September 5, 2019

All The President's Lawyers: I Talked To the FBI But I Only Said Helpful Things

All The President's Lawyers: I Talked To the FBI But I Only Said Helpful Things

This week Josh is away so I'M IN CHARGE and I interviewed Asha Rangappa: here.

Copyright 2017 by the named Popehat author. https://www.popehat.com/2019/09/05/all-the-presidents-lawyers-i-talked-to-the-fbi-but-i-only-said-helpful-things/

Thursday, August 29, 2019

Make No Law: "Deplatformed"

Make No Law: "Deplatformed"

In the new episode of Make No Law, I speak with Professor Eric Goldman of the indispensable Law and Technology blog about the concept of "deplatforming": do you have a right, under the First Amendment or Section 230, not to be banned from social web sites or social media? Spoiler: no, definitively not.

Some key cites from the episode:

Section 230 of the Communications Decency Act

Marsh v. Alabama, the "company town" case

Manhattan Community Access v. Halleck, the 2019 Supreme Court case definitely repeating the "private providers are not public" rule

Pruneyard v. Robins, the California Supreme Court case about shopping malls

Ralph's Grocery v. United Food, a 2017 California Supreme Court case demonstrating how drastically the Pruneyard doctrine has been limited.

Copyright 2017 by the named Popehat author. https://www.popehat.com/2019/08/29/make-no-law-deplatformed/

All The President's Lawyers: The Most Commonly Committed Federal Crime

All The President's Lawyers: The Most Commonly Committed Federal Crime

This week's episode is now online: link.

Copyright 2017 by the named Popehat author. https://www.popehat.com/2019/08/29/all-the-presidents-lawyers-the-most-commonly-committed-federal-crime/

Thursday, August 22, 2019

All The President's Lawyers: Mean To Judges

All The President's Lawyers: Mean To Judges

This week's episode is here: link.

Copyright 2017 by the named Popehat author. https://www.popehat.com/2019/08/22/all-the-presidents-lawyers-mean-to-judges/

Free Speech Tropes In The Atlantic

Free Speech Tropes In The Atlantic

The Atlantic asked me to update my 2015 post on bogus and misleading First Amendment tropes offered in the media. Here it is: link.

Copyright 2017 by the named Popehat author. https://www.popehat.com/2019/08/22/free-speech-tropes-in-the-atlantic/

Thursday, August 15, 2019

All The President's Lawyers: Obsesses Loser Edition

All The President's Lawyers: Obsesses Loser Edition

From this week's episode: link.

Copyright 2017 by the named Popehat author. https://www.popehat.com/2019/08/15/all-the-presidents-lawyers-obsesses-loser-edition/

Tuesday, August 13, 2019

Thirty-Two Short Stories About Jeffrey Epstein

Thirty-Two Short Stories About Jeffrey Epstein

Today at The Atlantic: link.

Copyright 2017 by the named Popehat author. https://www.popehat.com/2019/08/13/thirty-two-short-stories-about-jeffrey-epstein/

Monday, August 12, 2019

Last Week On ATPL

Last Week On ATPL

Last week was all about impeachment, Roger Stone, Avenatti's presidential dreams, and thus and such. Available at KCRW.

Copyright 2017 by the named Popehat author. https://www.popehat.com/2019/08/12/last-week-on-atpl/

Friday, August 2, 2019

Hate Speech and Billboards: A Discussion At Above The Law

Hate Speech and Billboards: A Discussion At Above The Law

Over at Above the Law, Elie Mystal and I had a discussion over that North Carolina billboard: is it protected by the First Amendment (yes, obviously) and should it be (that one is more complicated.)

It's here.

Copyright 2017 by the named Popehat author. https://www.popehat.com/2019/08/02/hate-speech-and-billboards-a-discussion-at-above-the-law/

Wednesday, July 31, 2019

Judge to DNC: No It's Not RICO

Judge to DNC: No It's Not RICO

This week on All The President's Lawyers

Copyright 2017 by the named Popehat author. https://www.popehat.com/2019/07/31/judge-to-dnc-no-its-not-rico/

Guest Post: The New York Times War On Drugs

Guest Post: The New York Times War On Drugs

(Patrick: We occasionally, when we bother to post at all, as we haven't in over two years, accept guest posts from experts in fields of interest we don't cover. Today's post is written by Molly Ratty, a lawyer practicing in the field of patent litigation. We solicited this post. It is not written on behalf of Ms. Ratty's firm, or her clients. Her only compensation is satisfaction in the knowledge of a job well done.)

A couple of weeks ago, the New York Times Editorial Board decided to wade into the issue of drug pricing, and while I’d like to say I was surprised at the level of ignorance and advocacy of ham-handed government force to get drug prices down, sadly, the Times was true to form. Nearly the entire piece is based on the assumption that drug companies are morally bankrupt for trying to profit from their work, and should be punished or shamed into doing the right thing, as if the right thing is not to earn a profit from the beneficial drugs they invent for patients. Now California Senator Kamala Harris has waded into the fray, promising that she’ll act, if Congress does not, in the first 100 days of her administration. (Exactly how, she does not say.)

The issue of drug pricing is an extraordinarily complicated one, made more complicated by how other countries, notably our friends in Canada, manage pricing of the same drugs being sold here by international corporations. The truth is, Americans do, in effect, subsidize the cost of drugs sold in other countries that have price controls and single payer systems. It may not be fair, but the result is astonishing innovation and access to drugs that were unimaginable even twenty years ago. Everyone should be exceedingly cautious about radical changes that could easily stifle innovation in drug development. We are better off having these drugs developed, even if some cannot afford them, than we would be not having them at all.

The editorial spoke favorably about some of Trump’s long-term proposals, most of which are also based on ham-handed, top-down government force, but purported to offer a few “things the administration could do now, using the power it already has, to help the situation.” The fact is, there is no “right now” solution to the problem and almost none of the Times’ proposals would work “right now” anyway. Moreover, the Times’ approach brings a sledgehammer to the job of repairing a watch. Their proposals, and those of Trump and his ilk, could cause significantly more market distortion and even higher prices than we already have.

In the Popehat tradition, I’ll try this in a Lawsplainer™ format (which is not trademarked as far as I know, but should be because it’s awesome). First, some background.

Why are drug prices so high? It costs a lot to bring a branded drug to market. Estimates range from about $700M to $2.7B for each drug that is a new chemical compound. These estimates don’t take into account all of the failed trials and false starts, which also cost money. Only one in ten drugs makes the jump from Phase I studies to market, and because of regulatory hurdles, drug companies are having a harder time bringing new products to market than ever before.

The drug industry has prospered and flourished under capitalism—the ability to make a profit by providing a good product that is useful to people. Drug companies have produced treatments and cures that were almost unthinkable fifty years ago. This is a good thing and we should encourage it, not stifle it.

We encourage drug innovation mostly through marketing exclusivities, like patents and FDA exclusivity periods. During the lifetime of a patent, such exclusivities allow drug companies to prevent anyone else from selling a competing or generic version of a protected drug. At the end of the patent, anyone can make and sell the drug, since a patent requires the inventor to disclose the product’s methods. And, if drug companies have no competition on a certain drug, they can charge just about any price they want, with few exceptions. We can and should lower the cost of regulatory approval, by streamlining FDA approval requirements, but that won’t reduce drug prices, not if drug companies have and keep monopolies over their drugs.

That’s really why certain drug prices are so high—lack of competition. And the best way to bring drug prices down is through generic competition. That doesn’t mean we should throw out the patent system, because we also want to give drug companies incentives to invest in drug development. It’s utterly useless to demonize drug companies for wanting to extract profits from their work. Their work is good for society and we want more of it. Profits encourage more of it. But, drug companies shouldn’t be allowed to extend their monopolies as much as they have. We need a better balance of innovation and competition.

How do we balance innovation and competition?

Generic competition works. According to a 2013 FTC study, more than two generic entrants can drive down prices by up to 50%.  In 2017 alone, generic drugs generated $265 billion in savings for patients. In fact, in that same year, almost 90% of dispensed drugs were generics, but generics account for only 23% of prescription spending.

Generic drug companies usually get on the market by challenging patents that cover the branded drug. In 1984, Congress passed the Hatch-Waxman Act, which gave generic drug companies a streamlined way to get FDA approval for drugs that are therapeutic equivalents to branded drugs, and an opportunity to challenge patents covering the branded drug before the generic launches, which eliminates generic companies’ exposure to damages for patent infringement.  In exchange, branded companies get certain opportunities to extend their patent terms, based on how long it takes to get FDA approval, and a 30-month period in which the FDA cannot approve a generic product, if the brand sues the generic company for patent infringement.

This system has worked pretty well, and we have 35 years of experience with it. Since Hatch-Waxman passed, we’ve experienced an explosion in the number and size of generic drug companies and the availability of generic drugs. But there’s a problem if generic drugs cannot get to market because of patents, particularly in the case of patents that were never worthy of being granted in the first place. That’s what we have now. We have a patent system skewed toward granting and upholding patents that never should have issued. What’s worse, branded companies erect thickets of multiple patents on a single product that have the effect of extended the patent life cycle of the product. (Any readers in the tech industry should be familiar with the problem of “patent trolls”.)

Here’s an extreme example: Let’s take a hypothetical drug company, we’ll call it Erectomax. Erectomax files a patent application for a good drug it discovered, one that relieves “male reproductive troubles.”  Erectomax gets a patent that covers not only the drug compound the company discovered, but millions of chemical variations on that drug compound. Erectomax later files another patent application, that contains more data on its drug, and that only covers the specific compound the drug company discovered, and ends up extending patent protection over the compound for another several years. Maybe then, Erectomax files an unrelated application to cover a method of treatment and extend patent protection for their FDA-approved indication, which extends patent protection for even more time. Finally, Erectomax files applications for a specific formulation of the drug or particular blood levels and a method of manufacturing the drug that can provide additional patent protection.  In this way, Erectomax can lock up not just its miracle compound, but almost the entire concept of related drugs for treatment of “male reproductive troubles,” potentially for decades.

The problem is, rigid court-developed rules on patent invalidity and infringement often don’t match up well with reality. There should be no good reason for a drug company to get coverage of all these things from compound to treatment to formulation to manufacturing process, each of which frequently has the practical effect of extended the monopoly over the branded drug, but cases like this happen often. The Federal Circuit and district courts, particularly in Delaware and New Jersey where most of these cases are filed, bend over backwards to uphold patent validity and infringement in these cases and the problem is getting worse.

There are several ways to manage these problems, including changing the rules for issuing patents and making it easier to invalidate them, and gearing patent awards toward new drug discovery, not just tweaks on older, existing drugs. Or, perhaps even tying patent term expirations to the launch of the product, as Europe does. In addition, we could make some fairly simple changes to certain FDA exclusivities that would encourage more patent challenges that would allow courts to weed out bad patents. We could also provide incentives, via, for example, limited exclusivities, for generic companies to make drugs that have a limited market that would not otherwise be attractive to them.

The point, however, is that the system as originally designed already works, or it could with a little tinkering from the appellate courts or Congress. It absolutely needs adjustment, but it works! Why would any reasonable person want to march the government in with heavy-handed regulatory requirements that depend on the judgment of unaccountable bureaucrats who often don’t have a clue what they’re doing; who will force prices down at the expense of innovation and impose additional business and uncertainty costs to making drugs? And yet, that’s exactly what the New York Times is proposing.

Why not use patent seizure or march-in rights?

The most controversial of several proposals from the New York Times is its proposal for the government to use patent seizure or so-called “march-in” rights to snatch back patents already issued. The Times dismisses out of hand patent law reform as “fantastical,” but thinks it’s a great idea to just grab patents already issued based on some bureaucrat’s assessment of whether a drug has made enough money.

Of course, this would need to be done on an individual, ad hoc basis, based on some, so far, unexplained assessment of which drugs are making “too much profit.” Notice the ad hoc nature of this proposal. No warning to drug companies. No advanced notice of what could happen if they price “too high.” No description of what “too high” actually is. This is a recipe for disaster.

It would not be done on a global basis and would therefore necessarily be limited in scope (in other words, it would be arbitrary). The Times hopes this would act like some sort of deterrent to those evil drug companies. It might. But it is absolutely certain to make drug companies adjust their pricing based on when they think they’ll face competition and when they think they’ll face the government grabbing their patents—adopting a “milking” strategy to squeeze out the highest profits possible, in the shortest possible time, before their patents are forfeited. It could actually have the effect of driving up prices across multiple products, in order for companies to save themselves from patent seizure of one big product. It’s not a long-term solution. It’s not even a short-term solution. It’s not really a fair solution. It’s certainly not a market-based solution, and would likely cause all manner of unintended consequences, including potentially stifling innovation.

Importantly, it would also introduce a lot of business uncertainty, because of its ad hoc nature. The harder it is for companies to predict what the legal and business future looks like, the more expensive things tend get for the company, while lining the pockets of lawyers. And when costs go up, guess what? So do prices. It’s beyond strange that the Times thinks this ham-handed approach would be more effective and realistic than a more elegant, long-term, and limited solution of patent reform.

What’s wrong with negotiating with drug makers or letting the government price drugs based on the benefits they provide?

The Times has miraculously discovered the benefits of government negotiating Medicare drug prices, as if this issue has not already been vetted and found wanting. In 2007, the CBO assessed whether allowing the government to directly negotiate would result in cost savings to the feds and concluded it would not.  Rather, it would likely restrict drug options for Medicare patients, by the government removing drugs that are too expensive from Medicare coverage, or drive up costs for everyone else, by forcing other patients to pay more so that Medicare patient can pay less.

We don’t have a single payer system here, and the government cannot and should not negotiate on behalf of insurance companies. This might help Medicare patients, although that’s doubtful, but it would not help other patients. Moreover, there is no evidence whatsoever that the government is in a better position to understand the correct price for a drug than insurance companies or doctors do.

(Note: the bigger issue with respect to price negotiations is not the force applied, but pricing opacity and multiple layers of payers, which not only drives up prices but also makes it much harder to know the actual market value of a drug. Just look at this chart. There’s almost no relationship between the consumer of the product and the manufacturer.)

(Source.)

Why shouldn’t we get the FTC involved?

The Times’ final proposal, to get the Federal Trade Commission involved, is probably the worst of all. First, if the FTC had a current legal mechanism for going after drug companies, they would already be using it. There’s a very basic problem with invoking antitrust laws to go after products that have monopolies due to patents—the patents are almost always granting lawful monopolies. This is almost certainly why the FTC is not pursuing antitrust cases against drug companies. They would lose. But, more importantly, even if they could, they shouldn’t.

Antitrust suits are the most indirect, ad hoc way to get at drug pricing. It would drive up costs by driving up litigation expenses and, as with patent seizure, would end up subject to the whim of regulators. We should be trying to drive down costs to drug companies, not up. This would also increase business uncertainty, again driving costs up by, among other things, lining the pockets of lawyers. Lawyers don’t need more money and we don’t need more lawyers in this country.

*          *          *

There is a market-based solution to the problem of high drug prices, but we currently have a political class that is too enamored with wielding power and engendering class envy without any regard for the risks of squashing the incentive to innovate. Again, we are better off having drugs to which some patients might not have access, than for all patients to have no access whatsoever.

(The author: Molly Ratty, is a patent practitioner working in the United States Pacific Northwest. In her free time, she publishes "Sam I Am Not: The Journal of Critical Theory on the Works of Dr. Seuss," and walking her donkey, who is beloved by children across the Northwest as "Buster the Noble Wonder Donkey." She may be reached with comments or questions on Twitter.)

Copyright 2017 by the named Popehat author. https://www.popehat.com/2019/07/31/guest-post-the-new-york-times-war-on-drugs/

Friday, March 29, 2019

The State of the Hat

The State of the Hat

One of the most justifiably ridiculed type of blog posts is the "hey guys I haven't posted in a long time" non-substantive blog posts, but nonetheless, here I am with a hey-guys-I-haven't-posted-in-a-long-time blog posts. (Like that? That's lampshade hanging.)

I'm pretty busy. My creative outlets are my new gig as a contributing writer at The Atlantic and the weekly All the President's Lawyers radio show and podcast on KCRW. And, though it seems I have abandoned the Make No Law podcast, I haven't — those podcasts are just incredibly time consuming to produce.

If I judge there is interest, I may start posting links to the Atlantic pieces and ATPL podcasts here for debate, in part so I can hear more regularly how much the site sucks now that I am Deranged By Trump/In The Tank For Trump. And I may develop some projects to write about here more regularly. So: though the site slumbers, it is not dead.

Copyright 2017 by the named Popehat author. https://www.popehat.com/2019/03/29/the-state-of-the-hat/

Friday, January 4, 2019

Alan Dershowitz Is Still Lying To You

Alan Dershowitz Is Still Lying To You

Last month I I argued that Harvard Law Professor and frequent Fox guest Alan Dershowitz was lying to you by disguising his perfectly arguable view about what the law should be as a statement of what the law is. Specifically, Dershowitz argues that when someone (say, General Flynn) lies to an FBI agent, and the FBI agent knows that it's a lie, and in fact expected the lie, the lie is not material, and therefore not a violation of Title 18, United States Code, section 1001, that familiar and abused element of vast prosecutorial power.

Dershowitz took quite a bit of heat for his pronouncements on materiality. His defenders — here and elsewhere — argued that he's merely arguing what the law should be and isn't being misleading at all. Professor Dershowitz has now doubled down, and has done his defenders no favors in the process.

He starts out honestly and reasonably enough by framing the issue as one of what the law should be:

The question posed by the Flynn case is whether a lie can be material if the FBI already had indisputable evidence of the truthful answer and asked him the question for the sole purpose of giving him an opportunity to lie.

As a civil libertarian, I believe the answer should be “No.” The proper function of an FBI or a grand jury interrogation is to obtain information they do not already have, and not to create a new crime by giving the suspect the opportunity to pass or fail a morality test with criminal consequences.

This is perfectly arguable as a matter of policy; I agree for slightly different reasons.

But Dershowitz cannot abide criticism. It's not enough to clarify that he meant to be normative and not descriptive.

Well, it turns out that the issue is not “well-settled.” Nor did I invent it. In fact, two influential courts — the New York Court of Appeals, in an opinion by one of the most distinguished jurists of the 20th century, and the D.C. district court that is now preparing to sentence Flynn — have sided with my interpretation. (True civil libertarians, however, should be concerned about what the law and policy should be, regardless of whether there is a precedent.)

Leave aside, for the moment, what Dershowitz is trying to sneak past you in the parenthetical — the notion that it doesn't matter if you're deceiving people about what the law is because you should be concerned with what the law should be. Instead, let's focus on the authority he's talking about. Did I miss cases in my analysis? Did Dershowitz, a formidable legal mind, find support that I did not?

No.

In The People v. Tyler, the New York court’s Chief Judge Charles Breitel reversed a conviction for perjury of a former public official who had lied about his connection to a well-known gambler. The court reversed the perjury conviction, holding that:

“The primary function of the Grand Jury is to uncover crimes and misconduct in public office for the purpose of prosecution … It is not properly a principal aim of the Grand Jury, however, to ‘create’ new crimes in the course of its proceedings. Thus, where a prosecutor exhibits no palpable interest in eliciting facts material to a substantive investigation of crime or official misconduct and substantially tailors his questioning to extract a false answer, a valid perjury prosecution should not lie.”

The appeals court cited a district court case in D.C., which held that to interpret “materiality” more broadly would serve no proper legislative purpose. In U.S. v. Icardi, 140 F. Supp. 383, the court held that if “the committee is not pursuing a bona fide legislative purpose when it secures the testimony of any witness, it is not acting as a ‘competent tribunal’ … [and] extracting testimony with a view to a perjury prosecution is [not] a valid legislative purpose.”

So. Let's review. In my post, I cited six different United States Courts of Appeal – six circuits — specifically rejecting Dershowitz' argument.1 Dershowitz now argues that the point is not "well-settled" because . . . in 1978 a New York court interpreting a New York law came to a different conclusion, and in 1956 a federal trial court in D.C. made comments supporting Dershowitz' view on materiality.

This is not a serious argument. An honest commentator or advocate might cite those cases for the proposition that the current rule is wrongly decided and that it should be changed. But no honest advocate or commentator would cite a state court decision on a different statute and a trial court decision from 1956 to say that the law is not "well-settled" when every federal appellate court to take up the issue has explicitly ruled the other way. Notably, though Dershowitz discusses and links the two cases he cites, he utterly ignores the wall of federal authority contradicting his position. He's not saying "yes, there is contrary authority, but it's wrong." That would be honest. Instead, he pretends the contrary authority doesn't exist. If he did that in a brief, he'd be sanctioned. If the government did it in a brief about one of his clients, he'd be outraged. Dershowitz is trading on the fact that non-lawyers will not grasp the legal significance of every single federal court of appeals to consider the issue going one way and a state court and trial court going another. He's using his expertise to deceive.

Note how he frames the dispute with his critics:

One can reasonably disagree on these issues, and I am ready to debate which is the better civil-liberty view.

But that's not the dispute. Some people do agree with the current regime of prosecutorial power, but those aren't the people Alan Dershowitz is complaining about. The dispute is this — what is the law now? Dershowitz is arguing that the law is, at least, unclear, and that the Special Counsel is breaking it. He's making that argument in fora sympathetic to that view, in service of the general narrative that the Special Counsel is lawless and that the Trump Administration is a victim of wrongdoing. He's doing so deliberately. He's lying.

Dershowitz views himself as a principled victim of calumny:

Being principled and intellectually honest means that, sometimes, your positions may conflict with your partisan preferences. For most of my critics, however, it seems that partisanship trumps their fair-weather commitment to civil liberties.

There's nothing principled about Dershowitz' stance. Principled commentators don't use their prestige to lie about what the law is. The law is vastly complicated and often obscure, which helps the government abuse it. Dershowitz' commentary — as he knows perfectly well — is being used to portray the Special Counsel proceedings falsely as an aberration rather than as a continuation of a long pattern of very troubling federal prosecutorial power. That narrative is a barrier to reform, not an incentive to it, because it suggests we can solve the problem by firing the Special Counsel, who is merely doing what prosecutors do every day. That is not a civil libertarian stance; it's the stance of a hack.

Dershowitz suggests that he's been falsely accused of being a Trump supporter. Allow me to clarify. I do not believe that Alan Dershowitz supports Donald Trump in his heart. I only think he's willing to use deceit to support Trump's narratives, and the narratives of Trump's obedient media allies, to get on television and in print. Alan Dershowitz doesn't love Trump. But he loves the camera more than he loves the truth.

Copyright 2017 by the named Popehat author. https://www.popehat.com/2019/01/04/alan-dershowitz-is-still-lying-to-you/