SBM Blog

Vaccination In The (Legal) News

Vaccination lies at a normally quiet but tricky intersection between science, public policy, and law.  The leading anti-vaccine activist, British medical researcher Andrew Wakefield, sued the British Medical Journal last year after the BMJ retracted a 1998 paper Dr. Wakefield authored in the publication. The suit was dismissed last August.

In recent days, two news stories highlight ongoing controversy. Robert F. Kennedy, Jr., lawyer and environmentalist, is an adherent of the view that the U.S. government is covering up a connection between the preservative thimerosal found in many vaccines and autism. He wrote a piece in Salon to that effect which Salon has subsequently retracted. Last week Kennedy gave a keynote address at a conference on autism in which he is reported to have likened childhood autism to Nazi death camps and said about the leading proponents of vaccination, "Is it hyperbole to say they should be in jail? They should be in jail and the key should be thrown away." 

On the heels of that story comes this -- a feature story from NPR's Here and Now asking "Should Parents Be Liable If Unvaccinated Children Sicken Others?," referencing Harvard Law ethicist Art Caplan's argument:

If you know the dangers of measles or for that matter whooping cough or mumps, and you still choose to put others at risk should you be exempt from the consequences of that choice?  I can choose to drink but if I run you over it is my responsibility.  I can choose not to shovel the snow from my walk but if you fall I pay.  Why should failing to vaccinate your children or yourself be any different?

Whichever way you look, there's a legal issue in sight.

Breaking: Jana L. Benjamin Named Executive Director of the Board of Law Examiners

The Michigan Supreme Court announced today that Jana L. Benjamin, an attorney who previously served as admissions officer for the University of Michigan Law School, has been named the first executive director of the Board of Law Examiners.

In her new role, Benjamin will oversee and administer the bar examination in Michigan.

Prior to working at Michigan Law, Benjamin worked as an associate attorney at Dickinson Wright and as an instructor at the American Institute of Paralegal Studies. After working at Michigan Law, Benjamin was a judicial law clerk and prehearing attorney for the Michigan Court of Appeals, and in 2012 she joined the State Court Administrative Office.

She earned a B.A. with high honors from U-M, and graduated cum laude from the Michigan Law School, where she was executive editor of Michigan Journal of International Law and research assistant to Dean Lee Bollinger. She served as a law clerk for U.S. District Judge John Feikens and clerked for Michigan Supreme Court Justice Charles L. Levin.

Posted by Samantha Meinke

 

 

The Champ Loses His Law License

In Michigan, the conversation in the legal community about lawyers and elections has centered around record-breaking judicial campaign contributions and lack of transparency.  Although Michigan has the dubious distinction of achieving national attention in both those areas, at least we have largely had the relative luxury of worrying about the appearance of impropriety and impartiality rather than actual corruption. A recent disbarment in Kentucky shows what it looks like when things really go off the rails. From Kentucky Bar Association v Donald [Champ] A. Maze:

After graduating from law school in 1987, Maze returned home and opened a solo practice in Owingsville, Kentucky. In 1990, Maze was elected as the Bath County Attorney and served three consecutive four-year terms until he was defeated in 2002. In 2006, Maze again ran for Bath County Attorney. The primary election that year, which was set for May 6, was rife with corruption and vote buying. According to the vote buying scheme, voting "assistors" would accompany voters into the voting booth, pay them for their vote, and then direct them to cast their ballot for particular candidates. The presence of the "assistors" was justified by the voter's alleged blindness, illiteracy or inability to operate the voting machine. Maze or others associated with him tried to persuade the Kentucky State Police to intervene but the practice continued. Eventually, Maze paid people involved in the scheme to add his name to the list of candidates for whom people were paid and directed to vote. Maze won the election and took office as Bath County Attorney on January 1, 2007.

Maze was suspended in 2007 after pleading guilty to vote-buying and perjury, but continued to practice. The litany of sins recited in the disbarment order also includes jury-tampering.

Justice Ginsburg Leans A Little Left

The assignment for today, class, is an essay on body language and current American jurisprudence. Pencils ready?  Here's your inspiration. While you're there, you might also be interested in Emily Bazelon's take on Tuesday's decision in the Michigan habeas case, McQuiggin v. Perkins, which she says helps defendants plead their case for innocence, but sets a pretty high bar for them to get over to do so:

In effect, it means that to figure out if people like Perkins are entitled to a hearing about whether they have strong evidence of innocence, judges will have to first hold a hearing to figure out whether there is strong evidence of innocence. If you’re a judge whose attention is caught by a habeas petition because you’re concerned that an innocent person may be in prison, AEDPA’s one-year deadline won’t stop you from taking a close look. That’s a victory for defendants and for the growing cadre of Innocence Projects around the country.

But it’s a pretty minor one. Justice Ginsburg makes clear that waiting around to file a habeas petition is still a bad idea because an “unexplained delay” is a strike against you. That is her answer to the state of Michigan’s complaint that a prisoner such as Perkins can “lie in wait”—for example, by holding back until an elderly witness who could rebut his new evidence has died. “The timing of such a petition,” Ginsburg cautions, “should seriously undermine the credibility of the actual-innocence claim.”  She also says “the standard is demanding” and that “cases qualifying for the actual-innocence exception will be rare.” Perkins, for starters, is probably out of luck because the district court judge who reviewed his habeas petition found that a reasonable juror could still have convicted him, despite the new evidence about the bloodstained clothes.

Career Building Through Humorous Self-Deprecation

Tom Goldstein, the founder of SCOTUSblog, shows how it's done:

 

 

Another Michigan Habeas Case Decided By U.S. Supreme Court

The argument of the State of Michigan in the habeas case Metrish v. Lancaster prevailed in a 9-0 opinion authored by Justice Ginsburg last week. Today, the Court delivered a more ambiguous result in another Michigan habeas case, McQuiggin v. Perkins, also authored by Justice Ginsburg. The issues were 1) whether, under the Antiterrorism and Effective Death Penalty Act of 1996, there is an actual-innocence exception to the requirement that a petitioner show an extraordinary circumstance that “prevented timely filing” of a habeas petition, and 2) if so, whether there is an additional actual-innocence exception to the requirement that a petitioner demonstrate that “he has been pursuing his rights diligently.”  The majority opinion effectively answered a stingy "yes" to the first question, but "not necessarily" to the second.  The decision says actual innocence exception only “applies to a severely confined category” — cases in which no reasonable juror aware of the new evidence would have voted to convict the defendant. And according to an Adam Liptak story in the New York Times, the opinion indicates that the petitioner may well fail on the diligence point on remand to the 6th circuit.

Court Of Appeals Judge Michael Talbot Named As Special Judicial Administrator of 36th District Court

The order issued today reads:

On order of the Court, pursuant to Const 1963, art 6, §4, and on a temporary basis until further order of this Court, Michael J. Talbot, judge of the Court of Appeals, is hereby appointed Special Judicial Administrator of the 36th District Court in the city of Detroit. On behalf of this Court, and subject to its control and supervision, Judge Talbot shall exercise powers of superintending control as set forth in Const 1963, art 6, §4.

The Court's action was precipitated by a highly critical report by the National Center for State Courts on the economically-distressed court's operations. The report called for the court to reengineer old work procedures and embrace a culture of innovation and change. Although the report's authors extended a special thank you to Chief District Court Judge Kenneth King for his insights and accommodations regarding the report, he did not respond in kind. "It was extremely insulting—the tone in which it was written. It was extremely insulting to me and my staff," he told the Detroit News.

State Court Administrator Chad Schmucker said Judge Talbot's appointment was needed to “keep the doors open at this court and make sure the public is getting the service it deserves.” Noting that the Court's choice of Talbot was unanimous, Chief Justice Robert Young said that D36's "extraordinary challenges" require a "strong change agent" to bring experience, vision, and a fresh perspective to the courts’ problems, and that Talbot's expertise in judicial administration and many years of experience in Detroit’s trial courts qualify him for the assignment.

Breaking: Former MSC Justice Diane Hathaway Sentenced to One Year in Prison

Former Michigan Supreme Court Justice Diane Hathaway has been sentenced to one year, one day in prison for bank fraud. She must also pay $90,000 in restitution and serve two years of probation.

"Your honor, I stand before you a broken person," the Detroit News quotes Hathaway as saying. "I am ashamed, embarrassed, humiliated and disgraced, and I have no one to blame but myself. I take full responsibility for my acts and am truly sorry for the choices I made."

Read more in the Detroit News and the Detroit Free Press.

Posted by Samantha Meinke

Are Most Students At Elite Law Schools Really Clueless?

An op-ed piece in the Washington Times by a Harvard Law law student, "The academy’s war on free thinking," laments the lack of ideological diversity at top U.S. law schools, noting, for example, the claim by a  Georgetown professor that the ratio of liberal to conservative faculty at his law school is 116 to 3.  He says the lack of diversity harms the liberal student body, many of whom graduate "without having encountered a cogent articulation of conservative views in the classroom, without having had their own ideas subjected to rigorous examination and debate."  As a result, he says, they "do not truly know why they hold the beliefs that they do, and they have little understanding of what a great proportion of their fellow citizens believe."  Reader, if you graduated from a top law school, does this describe your experience?  It certainly doesn't describe mine.  But then, not every law school class can claim both Anne Coulter and Michael Newdow among its members.

The Calm (Of Agreement) Before The Storm (Of Dissent)?

In his NYT SIdebar column "Justices Agree to Agree, at Least for the Moment," Adam Liptak notes that the remarkable percentage of unanimous opinions so far this term of the U.S. Supreme Court -- 60% -- is unlikely to hold up given the contentious subject matter of the remaining cases.  It is the "divisive and hard-fought decisions that take the longest to produce," Liptak writes. But Liptak notes that, regardless of how divisive the last opinions of the term turn out to be, the quality of the unanimity so far this term is notable:

The court led by Chief Justice John G. Roberts Jr. has set records for faux unanimity, where the justices agree on the result but barnacle the majority opinion with concurrences expressing caveats, interpretive glosses or wholly different rationales. The recent unanimous cases are different. In five of the six, there was just one opinion.

The column also calls attention to a new book, “The Puzzle of Unanimity: Consensus on the United States Supreme Court, that he says provides some answers to what drives agreement and dissent. Interestingly, the book's authors found that of the 500 cases that appeared on the front page of the New York Times between 1953 and 2004, only 12% had no dissents or concurrences. Chicken or egg?