Sunday, April 29, 2007


Today's New York Times 4/29/07) reports that minor crime offenders can obtain "pay-to-stay upgrades" at a number of city jails in California. The accommodations ranging from $75 to $127 per day are cleaner and safer and allow for the right to bring certain electronics as contrasted with the those provided the non-paying clientele. The system is justified by the income it generates and sells itself to prospects on the basis "that you are isolated and you don't have to expose yourself to the traditional county system." You don't enter the jail by the same means as the non-paying guests. In other words, even though you have been adjudged a criminal, you don't have to be treated as one, if you can afford it.

Rubin "Hurricane" Carter describes life in prison as being locked in "an iron cage**** I was a prisoner, a number, ******Not a person. Not a human being. But a body to be counted fifteen or twenty times a day." Of course, his confinement followed convictions for murder, not some minor offense. But it is important to recognize the harshness of any jail or prison time and that some offenders should be treated differently--should be isolated from the repeat and violent offenders. However, that selection and segregation should not depend upon the wealth of the offender. The concept is valid but the criterion is not. Just because a criminal can afford to be a frequent flier should not result in a jail upgrade.

Tuesday, April 17, 2007


Someone forwarded me an article which recently appeared in the highly respected National Review (Online). It was a re-trashing of me, based upon an opinion that I had written while on the United States District Court some 15 years ago in the Haines case. Also, I haven't served as a judge for 11 years. What a proud moment in journalism that must be! But in all fairness, putting aside the venom in the article, most of it is true. I was criticized by the Court of Appeals, reversed and was removed from the case, and nonetheless, despite my obvious shortcomings was nominated and confirmed for a seat on the Third Circuit Court of Appeals.

The language which prompted my dismissal from the case (after several failed tries by the tobacco defendants) was the following:

"All too often in the choice between the physical health of consumers and the financial well-being of business, concealment is chosen over disclosure, sales over safety and money over morality. Who are these persons who knowingly and secretly decide to put the buying public at risk solely for the purpose of making profits and who believe that illness and death of consumers is an appropriate cost of their own prosperity!

As the following facts disclose, although there may be some rising pretenders to the throne, the tobacco industry may be the king of concealment and disinformation."

At my Senate confirmation hearing, I even conceded that if given the opportunity I would probably take that language back if I could (although convinced then and now of its accuracy), because I recognized that despite its truth, it might not be appropriate language for a court opinion, and certainly not, if it was going to cause my removal from cases that I had presided over for almost 10 years.

But in retrospect, strangely enough, though criticized, reversed and causing my removal, I think the decision in the Haines was probably the most important decision of my career. I was informed by Dr. David Kessler that it launched the FDA's investigation into tobacco; a TV documentary suggested that it was the basis of the federal government's case against the industry, and many lawyers representing the states in their claims against the industry (resulting in the largest settlement in history) credit my decision with being the catalyst for their suits.

My decision is characterized by NR as a historical example of "liberal judicial activism". The Court of Appeals found it to be wrong, and I agree with its decision in every respect, except the basis for my removal. But I fail to see what makes it either "liberal" or "activist", unless rulings against the tobacco industry automatically fall under those labels. Also, fairness might have prompted NR to include the following quote from the appellate opinion---although admittedly inserted to soften the blow of my removal:

The district judge in this case had been a distinguished member of the federal judiciary for almost 15 years and is no stranger to this court; he is well known and respected for his magnificent abilities and outstanding jurisprudential and judicial temperament. On the basis of our collective experience, we would not agree that he is incapable of discharging his judicial duties free from bias or prejudice.****

Finally, the judge who authored that opinion removing me from the case was the staunchest supporter of my subsequent nomination to be a member of the very court upon which he served. Surely NR can find some active judges engaged in activism. If not, they might want to review the opinions of the Rehnquist Court which declared unconstitutional more acts of Congress than any Supreme Court in history.

Thursday, April 12, 2007


I learned for the first time today that there are laws in many states prohibiting the use of a doctor's apology as an admission in a malpractice claim against the doctor. (AP, R.I. 4/12/07) According to the report, at least 28 states already have the legislation and 8 other states are considering adopting it. Furthermore, the article reveals that insurers warn doctors against the dangers of apologizing or using words such as "error", "mistake", "fault", or "negligence" in talking to their patients.

Is this what our legal system has wrought? Have we so intimidated the medical profession that its members fear admitting their mistakes and offering to correct them; that we need legislation to protect them against the consequences of apologizing? Concededly, doctors are faced with baseless malpractice claims, exorbitant insurance premiums, the expenditure of time and emotion in defending suits and the possibility that their mere threat causes them to practice and prescribe in a manner that they would not do otherwise.

But likewise, there are legitimate malpractice claims. Do we want our medical profession to be more concerned with potential liability than being candid and caring for the health and well-being of their patients. And if morality and principle do not suffice, practically, who is more likely to be sued, the doctor who admits his mistake to the patient and offers to correct it or the doctor who conceals and avoids confessing the error.

I had a doctor for years who had a sign in his waiting room: I HAVE NO INSURANCE. IF YOU PLAN TO SUE ME, PLEASE GO ELSEWHERE. If he made a mistake, I know he would tell me, because he was more concerned with my health than his liability. If we in the legal profession have reversed that then I hope none of us ever gets sick.