Tag: in-the-news

In a New England Journal of Medicine commentary published today, the authors of the opioid prescribing guidelines that the U.S. Centers for Disease Control and Prevention issued in 2016 reiterate the agency’s recent warning that it does not recommend abrupt or nonconsensual tapering for patients who are already taking high doses of narcotic analgesics for chronic pain. “Unfortunately, some policies and practices purportedly derived from the guideline have in fact been inconsistent with, and often go beyond, its recommendations,” write Deborah Dowell, Tamara Haegerich, and Roger Chou. Those policies and practices, they say, include “inflexible application of recommended dosage and duration thresholds and policies that encourage hard limits and abrupt tapering of drug dosages, resulting in sudden opioid discontinuation or dismissal of patients from a physician’s practice.”

Dowell, Haegerich, and Chou warn that patients forced to reduce their doses “could face risks related to withdrawal symptoms, increased pain, or unrecognized opioid use disorder” and “if their dosages are abruptly tapered may seek other sources of opioids or have adverse psychological and physical outcomes.” They also worry that doctors are responding to the CDC’s advice about the potential risks of opioids by “dismiss[ing] patients from care” or declining to prescribe opioids at all, “even in situations in which the benefits might outweigh the risks.” Dowell et al. say “such actions disregard messages emphasized in the guideline that clinicians should not dismiss patients from care, which can adversely affect patient safety, could represent patient abandonment, and can result in missed opportunities to provide potentially lifesaving information and treatment.” And they note that the guidelines have been improperly applied to “patients with pain associated with cancer, surgical procedures, or acute sickle cell crises.”

The CDC’s recognition that misinterpretation of its guidelines has resulted in needless suffering, patient abandonment, and “adverse psychological and physical outcomes” (including suicide) is welcome, if overdue. “This article should allay anxiety among physicians who prescribe responsibly for patients with chronic pain,” says Sally Satel, a Washington, D.C., psychiatrist who helped organize a March 6 letter to the CDC in which hundreds of health professionals and addiction specialists, including three former drug czars, expressed concern about the unintended consequences of the CDC’s advice. “No longer can any clinician, insurer, health care system, or pharmacist claim ‘the CDC Guideline says’ when it comes to tapering or discontinuation.”

Stefan Kertesz, a University of Alabama at Birmingham pain and addiction specialist who worked with Satel on the letter to the CDC, was also heartened by the NEJM article. “We needed CDC and its guideline’s authors to do precisely what they have done, which was to speak with vigor and clarity to the pressing ethical concern we laid out in our letter,” he says. “In affirming that the guideline did not call for hard dose cutoffs and forced tapers, the guideline’s authors have effectively called for recalibration of policies by insurers, by Medicaid authorities, and by agencies that have set ‘the number of patients above a given dose’ as the primary indicator of bad care.”

The letter to the CDC included testimony from hundreds of patients who have suffered the consequences of that ham-handed approach. “The trauma to patients who have been living in terror these past three years nearly broke my heart many times,” Kertesz says. “The only possible step has been for people familiar with the nexus of science and health policy to speak openly about the problems we have seen, and to trust that most people ultimately want to do what’s right.”

Yet Dowell et al. conspicuously fail to take any responsibility for the unintended but foreseeable harm caused by their advice. When a document is as widely misconstrued as the CDC’s guidelines have been—by insurers, regulators, legislators, pharmacists, and law enforcement agencies as well as clinicians—it is fair to ask how the authors left themselves open to misinterpretation.

According to the guidelines, “Clinicians should use caution when prescribing opioids at any dosage, should carefully reassess evidence of individual benefits and risks when considering increasing dosage to ≥50 morphine milligram equivalents (MME)/day, and should avoid increasing dosage to ≥90 MME/day or carefully justify a decision to titrate dosage to ≥90 MME/day.” The implication is that daily doses of 90 MME or more per day are rarely, if ever, medically justified.

It is hardly a stretch for physicians with patients who exceed this arbitrary threshold, including patients who have been functioning well on high doses for years, to worry that they will be perceived as practicing outside the bounds of proper medical care. Given the scrutiny that regulators and law enforcement agencies such as the Drug Enforcement Administration (DEA) have been applying to doctors in response to the “opioid epidemic,” prescribing practices portrayed as extreme and dubious by the CDC are apt to attract unwelcome attention that could jeopardize a physician’s livelihood and liberty.

“We still, unfortunately, have physicians who worry about capriciousness on the part of the DEA,” Satel notes. “That is the next step in efforts to ensure that doctors can continue to serve pain patients who have been benefiting from opioids.” While “the DEA does indeed have a job to do,” she says, “doctors are confused about what could make them a target.”

How doctors respond to anti-opioid pressure will depend on how they weigh their duty to patients against their personal risk. In this context, forced tapering and abandonment were predictable outcomes, even though the CDC guidelines say doctors should reduce doses only when the risks outweigh the benefits and describe the process as collaborative and consensual.

“Clinicians should empathically [sic] review benefits and risks of continued high-dosage opioid therapy and should offer to work with the patient to taper opioids to safer dosages,” the guidelines say. “For patients who agree to taper opioids to lower dosages, clinicians should collaborate with the patient on a tapering plan.”

Dowell et al. complain that “the guideline has been misimplemented,” saying “policies invoking the opioid-prescribing guideline that do not actually reflect its content and nuances can be used to justify actions contrary to the guideline’s intent.” But those nuances were bound to be lost amid the fear and anxiety caused by the government’s crackdown on prescription pain relievers.

Notwithstanding Dowell et al.’s disavowal of “hard limits and abrupt tapering,” that is what happened across the country after the CDC guidelines came out, as reflected in this sign at a doctor’s office in Washington state. “Beginning February 2017,” it says, “Morphine Equivalency Dosing WILL decrease until CDC guidelines are met by June 2017. Target is 90mg of Morphine equivalency per day, or less. All medication adjustments will be based on this new clinic policy.”

While decrying involuntary and precipitous tapering, Dowell et al. present the general decline in opioid prescribing as a sign of progress. “Although outpatient opioid prescribing had been declining since 2012,” they write, “accelerated decreases—including in high-risk prescribing—followed the guideline’s release.” Yet the continuing drive to reduce the volume of opioids prescribed in the United States has encouraged doctors, insurers, and policy makers to target patients on high doses, who consume a disproportionate share of the total. Kertesz emphasized that point at a recent conference in Charleston.

Dowell et al. do not acknowledge the downside to the decline in opioid prescribing, which has been accompanied by a surge in opioid-related deaths as both patients and nonmedical users turn to the black market, where the drugs are much more dangerous because potency is highly variable and unpredictable. Nor do they question their emphasis on the 90-MME threshold, which is scientifically problematic for several reasons. It assumes that analgesic effect corresponds to overdose risk and that different opioids can be reliably compared to each other based on fixed ratios. It ignores numerous factors that affect how a patient responds to a given dose of a particular opioid, including obvious considerations such as the patient’s weight, treatment history, and pain intensity as well as subtler ones such as interactions with other drugs (which can suppress or amplify an opioid’s effects) and genetically determined differences in enzyme production and opioid receptors.

“Policies should allow clinicians to account for each patient’s unique circumstances in making clinical decisions,” Dowell et al. write. The CDC’s 90-MME threshold, however it was intended, has in practice encouraged a much less discriminating approach, one that sacrifices patients’ welfare for the sake of conforming with the perceived demands of the federal government.

“The CDC bears full responsibility for how these arbitrary dose levels are being implemented throughout the country and the consequences for the people in pain,” Lynn Webster, a former president of the American Academy of Pain Medicine who signed the March 6 letter to the CDC, told me last year. “I said at the time when they were proposed that if something comes from the CDC as a guideline, it is more than a guideline. It will be interpreted basically as a level of dosing that if you exceed [it], then you are at legal jeopardy.”

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In a fit of nanny-state pique last year, London announced it would be banning “junk food” advertising on public transportation, allegedly part of an effort to “fight obesity” by laying the blame on people selling food rather than those eating too much of it.

The ban was itself insultingly patronizing. And now, almost hilariously, it turns out that it was written so broadly that it’s forbidding all kinds of food advertisements that the average person (even one with healthy eating habits) would not describe as “junk.” It’s also forcing the removal of representations of food on advertisements that simply use it symbolically to sell something else entirely. Apparently even the very image of a forbidden food will drive the weak-willed into helpless cravings.

The ban covers any food that’s high in fat, sugar, or salt, which is a description of what you’ll find in “junk food,” but is also a feature of foods that are perfectly healthy to eat. The Telegraph notes that the banned food list is hitting everything from cheese to honey to olive oil to canned fruit. Bacon or butter? That’s a big nope, ketogenic diets be damned.

The unintended consequences of the advertising ban reached comedic levels today, with news that London’s transit system had to change several of its own ads for having a representation of a forbidden food. As The Telegraph reports, they had an advertisement promoting Wimbledon Park as a transit destination with an image of strawberries and cream, a treat that’s also an iconic British dessert staple.

But not even England’s love of tradition can withstand its love of telling other people how to live their lives, so the advertisement had to be changed to remove the offending snack. London Mayor Sadiq Khan endorsed the ban, and now his own agencies are discovering the impacts are extensive.

That’s not all. Over at The Spectator, Christopher Snowdon, who has been criticizing the far-reaching government attempts to meddle with everybody’s food choices, tracked down more absurd tales of ads by London’s transit system that ran afoul of the “junk food” ban and had to be yanked and changed. The Wimbledon ad isn’t the only advertisement London’s own transit system had to alter. They had to remake an advertisement for their bus app because it had an image of a single cookie, which cost more than $6,000 (in U.S. dollars) to redo. A holiday ad featuring the moon dressed up to look like a Christmas pudding also had to have the cleverness removed to comply with the rules and turn back into a plain old inedible moon.

The Wimbledon strawberry dilemma was actually part of a much bigger internal advertising “problem” that Snowdon documented by getting records from London’s transit system about any compliance issues. It turns out that a bunch of maps for the London Underground (the subway) intended to illustrate to tourists what they could do at each stop was full of visual representations of food and drink. Because that’s what tourists do, right? But every single instance of food and drink represented on the map needed to be carefully vetted to make sure it complied with the junk food laws, and several images needed to be eliminated, even though it actually reduced the utility of the map for tourists.

Snowdon calculates that the cost incurred by the London transit system to comply with its own regulations added more than $20,000 U.S. dollars in fixes. While this seems like an unintended consequence of a poorly implemented policy, Snowdon thinks all these overly oppressive regulations are intended. He concludes:

These outcomes might be ridiculous but they are not accidental. They are what happens when fanaticism becomes normalised. This is how things are now.

That purging bus ad representations of iconic British foods is most certainly not going to fight obesity is irrelevant. The rules will be followed!

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There is a huge contradiction at the heart of Bernie Sanders’ Medicare for All plan.

On the one hand, Sanders not only wants to expand government-provided coverage to everyone in the country, he wants that coverage to be significantly more generous than Medicare, private insurance, or comparable government-run systems in other countries. On the other hand, he wants to drastically cut payments to hospitals, many of which lose money on Medicare right now, making up for the program’s relatively low payments by charging much higher prices to private insurers.

What Sanders is proposing, in other words, is that the government finance a significant increase in government services while also radically reducing the amount it pays for those services. Even making generous assumptions, it’s almost impossible to see how his plan could work.

Let’s start with the promises Sanders makes about Medicare for All. No networks, premiums, deductibles, or copayments. Under his plan, essentially all non-cosmetic services would be free at the point of care for everyone.

Under Medicare for All, Americans will no longer have to worry about:

-Networks
-Premiums
-Deductibles
-Copays
-Surprise bills
-Losing coverage

We are going to end the greed of insurance companies and put patients first.

— Bernie Sanders (@BernieSanders) April 19, 2019

Sanders calls this Medicare for All, but what he’s describing isn’t Medicare as we now know it. As The New York Times noted earlier this year upon the release of a Sanders-inspired Medicare for All bill in the House, the new program would “drastically reshape Medicare itself,” changing both what it pays for and how. In many ways, it would be a completely different program. Medicare for All, in other words, isn’t really Medicare.

And that program would be far more expansive and expensive than nearly any other comparable system. It would cover more, and require less direct financial outlays (not including taxes), than either today’s Medicare or typical private insurance plans in the U.S.

It would also be substantially more generous than the national health systems set up in other countries. Sanders likes to unfavorably contrast America’s mixed public-private health care system with foreign systems where the government is more directly involved. When he announced the 2017 version of his Medicare for All plan, for example, he bemoaned the state of affairs in the United States “a time when every other major country on earth guarantees health care to every man, woman, and child.” Discussions about health care policy on social media often include some variant of the question, “If every other country with a developed economy can do it, why can’t the United States?”

The problem with this line of questioning is that what Sanders is proposing isn’t what other countries do. Canada, for example, has a single-payer system, but it doesn’t cover dental care, vision, drugs, or any number of other services. A majority of Canadians carry private insurance in order to cover those services. In Britain, which offers a fully socialized medical system where health care providers are government employees, many resident still buy private coverage. Sanders, on the other hand, would effectively wipe out private coverage in the space of just four years.

There are similar limitations on coverage in other countries, like the Netherlands. It’s also true in Australia, where patients typically pay a percentage of the cost of specialty services. It’s true that in these countries, government plays a more central role in health care financing. But their systems have also reckoned with costs and tradeoffs in a way that Sanders, after so many years, has not.

Indeed, the main trade-off that Sanders seems willing to discuss is the elimination of insurance companies, which he portrays as greedy middlemen driving up the cost of health care. Wiping out the industry in one fell swoop, as Sanders has proposed, would be a unprecedented and disruptive move that would have significant economic repercussions, including the probable loss of thousands of insurance industry jobs. But it still wouldn’t do much to bring down the cost of health care, because so much money in the nation’s health care system is tied up in provider payments, especially hospitals.

And therein lies the contradiction.

Most people probably think of hospitals as places where you go to get health care services. Politically and economically, however, they also fulfill another role: They are hubs for stable middle-class jobs, paying reasonably good wages to thousands of highly trained workers, most of whom are not doctors or specialists earning stratospheric salaries.

To acquire the revenue to pay for all these jobs, hospitals rely on a mix of private and public payments. Public payments make up a somewhat larger share of total hospital budgets, but private payers are typically charged much higher prices.

Hospitals like to argue that Medicare and Medicaid payments are too low to cover their costs, and that as a result, higher private payments effectively subsidize public health coverage. Critics (with some evidence) often respond that hospitals either overstate or don’t really understand their own costs, and that this is just a ploy to extract more money from government health programs and private payers.

But when considering Medicare for All, the particulars of this debate are largely beside the point, because there is simply no question that eliminating private insurance and payment for all services would drastically reduce the amount of revenue for hospitals.

Yet that is exactly what Sanders wants to do. His plan calls for paying for health care services at Medicare rates, which means that, practically overnight, hospitals would end up with far, far less revenue. Exactly how much is unclear, but one estimate indicated that payments could drop by as much as 40 percent.

That would leave hospitals with a couple of difficult choices. They could eliminate services. They could try to force some employees to take pay cuts. They could fire large numbers of workers. Or they could simply shut down. As a recent New York Times report on how Medicare for All would affect hospitals noted, rural hospitals—many of which are already struggling to stay afloat—would be particularly at risk of closing.

Whatever ended up happening, there is simply no way most hospitals would or could continue operating as they do now under the payment regime that Sanders envisions. Lots of middle class jobs would disappear. Services would be eliminated or cut back. 

Yet Sanders not only imagines that hospitals would continue to operate as they do now, but that they would expand their services to even more people, since more people would have coverage. And since he also imagines a system with no deductibles or copays, those people would almost certainly end up dramatically increasing utilization of hospital services.

Studies of health insurance have consistently shown that expansions of health insurance result in increased demand for (and use of) health care services; more people with coverage means more people lining up to get care. (Relatedly, introducing even very small copays—on the order of just a few dollars—can reduce the number of visits to doctors and hospitals.) Greater utilization of health care services does not necessarily translate into measurably better physical health outcomes. But it does increase the strain on the health care delivery system—which is to say, it puts a huge amount of pressure on hospitals.

So what Sanders is proposing is a massive reduction in funding for health care services at the exact moment that the system experiences a massive increase in demand. It would be difficult to do either. Sanders wants to do both at the same time. 

It is a recipe for disaster—and a contradiction that Sanders has so far barely acknowledged, much less resolved.

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New Jersey Gov. Phil Murphy, a Democrat, is renewing his push to strengthen the already-strict guns laws in the state by raising the fees required to buy a firearm by 2,000 percent or more.

New Jersey residents already have to jump through a lot of hoops to buy a gun, though Murphy’s proposal would make the process considerably more expensive. As State Police Capt. Stephen Jones detailed to New Jersey 101.5 in 2016, it starts at the police department, where would-be gun owners must apply for a Firearms Purchaser Identification Card. It takes about a month or more for the police to run a background check on someone’s criminal and mental health history. (This check is in addition to the one required by federal law at the point of sale for people looking to purchase a firearm from a licensed dealer.) The New Jersey ID card itself currently costs $5, but Murphy wants to raise the price to $100.

Potential handgun buyers must go through an additional, separate process to obtain a handgun permit, which currently costs just $2. Under Murphy’s proposal, it would cost $50.

And what happens if you want to carry that handgun around? Well, good luck. It’s largely illegal to open carry a handgun (though not a legally owned rifle or shotgun). Carrying a concealed handgun is permitted, but New Jersey is a “may issue” state, meaning you have to prove that you have a good reason to carry. It costs $20 to obtain a concealed carry permit. If Murphy gets his way, that will rise to $400.

Right now, a New Jersey resident looking to buy a handgun for concealed carry purposes is looking at $27 (at least) in state fees. That would go up to $550 under Murphy’s proposal, an increase of more than 2,000 percent. His proposed 2020 state budget also calls for a 2.5 percent excise tax on gun sales, as well as a 10 percent ammunition tax, NJ.com reported last month.

“There’s no war on responsible gun owners,” the governor claimed to The New York Times recently. “We can support the efforts of the attorney general, state troopers, county and local law enforcement, to do the stuff we need to do: track crime, track gun violence, combat trafficking of illegal guns.”

Murphy specifically cited the $10 cost to obtain a dog license in Jersey City, comparing it to the $2 cost of a handgun purchase permit. “That is backwards and it must change and it will change,” Murphy said at a Rutgers University event on Tuesday.

It’s a curious argument, to be sure. Dog licenses have absolutely nothing to do with handgun purchase permits, and even if they did, lowering the cost to get a dog license is a better solution than making it even harder to buy a gun. New Jersey, after all, already has the second-strongest gun laws in the country, after California, according to the Giffords Law Center To Prevent Gun Violence.

Amazingly, Murphy’s own budget suggests that his proposal won’t help gun violence go down. “In 2018, roughly 80 percent of guns used in the commission of a crime came from out of state,” he notes in the budget. Making it more difficult to legally obtain a gun in-state, of course, will do nothing to lower this number.

“Most crime guns in the Northeast are thought to come from the ‘iron pipeline’ from the South, and then they’re sold on the street,” Daniel Feldman, a professor of public management at the John Jay College of Criminal Justice, told the Times.

Murphy wants to spend the new revenue on anti-gun violence initiatives. The various additional fees would raise about $9 million revenue, just a small fraction of his $38.6 billion proposed budget, which needs to be approved by the end of June.

It’s Murphy’s latest effort to make New Jersey’s gun laws even more strict. In November, he signed into law legislation banning “ghost” guns (i.e. homemade firearms, particularly 3D guns, that are made from untraceable parts).

As expected, Second Amendment advocates and gun store owners are not pleased with his proposal to raise fees.

“It’s specifically designed to deter people that can’t afford it or don’t have the time to go to the police department, take three [or] four days off of work, to be able to go apply, to go pick up the application,” New Jersey Second Amendment Society President Alexander Roubian tells WNBC.

“Anything that increases or puts a tax on law-abiding citizens that want nothing more than to be able to protect themselves is discriminatory and is specifically designed towards targeting low-income individuals,” Roubian, who’s threatening a lawsuit, adds to WNYW.

Mel Katz, who owns Defense Security in East Windsor, New Jersey, expressed similar concerns about the limited resources of many gun owners.

“The majority of the people who are buying firearms are blue-collar. It’s a hobby. They go hunting. They go target-shooting,” he told NorthJersey.com last month. “And it’s discretionary funds they use to support that hobby.”

“But if now they want to go out and buy a handgun for $400 or $500, and it’s going to cost them $100 just to get a permit to purchase,” Katz added.

Lisa Caso, the owner of Caso’s Gun-A-Rama in Jersey City was a bit more blunt. “I think what Murphy would want to happen,” she told the Times, “is for every gun shop in the state of New Jersey to just close.”

It is difficult to see what good would come out of Murphy’s proposal. Considering this is the same state that banned high-capacity magazines, only for very few citizens to actually turn over their illegal magazines once a federal appeals court allowed the ban to take effect, it’s not all that surprising. New Jersey politicians like to enact strict-sounding gun laws, but their effectiveness in actually lowering crime doesn’t seem to matter all that much.

Murphy’s proposal, meanwhile, faces an uphill battle in the state legislature. “We are the most progressive state in the nation when it comes to gun reform,” state Senator Stephen Sweeney (D–3) previously told NorthJersey.com. “And just to check a box to say you did something, I’m not sure that’s necessary.”

Citing sources in Trenton, New Jersey’s capital, WNBC’s Brian Thompson reported that Assembly Speaker Craig Coughlin (D–19) is “very skeptical” about the proposal as well.

An editorial regarding the proposal in the New Hampshire Union Leader may have characterized the plan best. “That will put the poor people in their place. No guns for you! The rich will still be able to afford weapons, of course. And since restrictive gun laws have never stopped criminals, they, too, will acquire them,” the editorial reads. “Utopia is near at hand.”

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As lieutenant governor, Gavin Newsom supported a 2017 bill increasing the state’s gas taxes. When running for governor in 2018, he opposed a ballot initiative that would have repealed that same increase. It’s 2019, and Newson, now the state’s governor, is demanding an investigation into why the state’s gas prices are so high.

On Tuesday, the governor sent a letter to the California Energy Commission (CEC) asking that the state agency investigate the Golden State’s roughly $4.03 per gallon gas prices, currently the highest in the country (and well above the national average of $2.86 per gallon).

“Independent analysis suggests that an unaccounted-for price differential exists in California’s gas prices and that this price differential may stem in part from inappropriate industry practices,” wrote Newsom in his letter to the CEC. “These are all important reasons for the Commission to help shed light on what’s going on in our gasoline market.”

Newsom is not alone in wanting answers to this difficult head-scratcher.

In January, 19 state legislators—17 of whom had voted in favor of that 2017 gas tax increase, while the other two had only entered office in 2018—sent a letter to State Attorney General Xavier Becerra demanding that the state’s Department of Justice (DOJ) investigate the “unexplained gasoline surcharge” that was estimated to cost Californian families $1,700 a year.

California currently imposes the second-highest gas taxes in the country. A state excise tax currently adds $.417 per gallon, a rate that will increase to $.473 come July. On top of that, the state imposes a 2.25 percent gasoline sales tax.

In addition, California has adopted a low-carbon fuel standard and a cap-and-trade scheme for carbon emissions which together increase the state’s gas prices by $.24 per gallon above the national average, according to a 2017 state government report.

That same report maintained that, even after all these state-imposed costs were tallied up, California’s gas prices remained above the national average, a finding that both those 19 state legislators and Newsom are using to justify their demands for an investigation.

Newsom, as mentioned, alleged there may be “inappropriate industry practices” at play.  State lawmakers, in their January letter, suggested the state’s retail gasoline market might lack “robust competition” leading motorists to pay more at the pump.

However, a lot of the higher, non-government-imposed prices Californians are paying currently could plausibly be chalked up to normal supply and demand.

Local media reports point to the twin effects of increasing demand and springtime maintenance at the state’s refineries as contributing to the price hikes.

The late March shutdown of a Valero refinery in the Bay Area added to the price hikes.  Something similar happened in 2015, when an explosion at the Torrance refinery in Los Angeles County caused the facility, then responsible for refining 10 percent of the state’s gas, to close for over a year.

Prior to that 2015 explosion, California’s “gasoline price premium tracked closely with our higher taxes and production costs,” wrote Severin Borenstein, a professor at University of California, Berkeley’s Haas School of Business in a blog post.

After the Torrance explosion, prices spiked, and then slowly began coming down over the next year, although they to this day remain higher than they were prior to that incident.

Industry representatives maintain that any difference in the state’s gas prices can be explained by normal market forces, and of course all those taxes and regulations.

“The petroleum industry on the West Coast has been subject to dozens of independent investigations by government agencies, all of which concluded the dynamics of supply and demand are responsible for movements in the price of gasoline and diesel fuel,” said Kevin Slagle, a spokesperson for the Western States Petroleum Association (WSPA), in a statement, adding that “state programs, such as cap-and-trade and the Low Carbon Fuel Standard, impact fluctuations in energy markets.”

It should be pointed out too that high levels of taxation and regulation and a lack of competition in the state’s fuel sector are not mutually exclusive explanations.  Government fees and red tape often have the effect of squeezing out marginal producers and retailers, giving remaining firms greater ability to raise prices.

And regardless of any “mystery premium” on California gas, the fact remains that state government polices are a huge component of the final price everyone is paying at the pump.

Indeed, in the case of the state’s cap-and-trade scheme—where the state caps the amount of allowable carbon emissions, and then auctions off emission credits—the explicit purpose is to raise the cost of emitting carbon, and thus burning gasoline.

Absent these policies, the state’s gas prices would be lower.

Clearly, for many of California’s politicians, the benefits of state policies aimed at producing cleaner air quality, mitigating climate change, and generating more revenue for road maintenance and light rail expansions surpass the costs of higher gas prices.

If that’s the case, however, Newsom and others should make that case to voters directly and explicitly instead of trying to appease motorists’ anger by pointing their fingers at industry.

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[I’m continuing to serialize my forthcoming Penn Law Review article on Anti-Libel Injunctions.]

So far, I have argued that the First Amendment does not preclude properly crafted anti-libel injunctions, in part because they are similar to constitutionally valid properly crafted criminal libel laws.

But should courts essentially recreate such mini-criminal-libel laws in states that have repealed their criminal libel laws?[1] Or would that improperly contradict the legislature’s judgment embodied in that repeal?

When the California Legislature, for instance, repealed its criminal slander law, it specifically said, “the Legislature finds and declares that every person has the right to speak out, to poke fun, and to stir up controversy without fear of criminal prosecution.” It likely had much the same motivation for repealing its criminal libel law five years before. Likewise, in the words of the Model Penal Code drafters, who called for decriminalizing libel, “penal sanctions cannot be justified merely by the fact that defamation is evil or damaging to a person in ways that entitle him to maintain a civil suit.” And the New Jersey Supreme Court relied on this in refusing to read the state’s criminal harassment statute as punishing defamation:

At the time the Legislature passed the New Jersey Code of Criminal Justice [which was based on the Model Penal Code], it repealed New Jersey’s last criminal libel statute. In doing so, the Legislature signaled that the criminal law would not be used as a weapon against defamatory remarks, thereby aligning our new criminal code with the Model Penal Code.

It makes sense for courts to likewise look to legislative judgment in deciding whether criminal contempt law should “be used as a weapon against criminal remarks,” would limit people’s “right to speak out, to poke fun, and to stir up controversy without fear of criminal prosecution,” and should lead to “penal sanctions” for “defamation.”

To offer an analogy: Say that a state legislature repeals the state’s criminal adultery statute (as most states have), but the state courts continue to recognize the tort of “alienation of affections,” under which a spouse can sue the other spouse’s lover.[2] And say that a plaintiff in a criminal conversation case not only seeks damages against the defendant, but an injunction ordering the defendant not to have sex with the plaintiff’s spouse. A court should be reluctant, I think, to issue such an injunction—an injunction that would threaten to punish the lover with criminal contempt for any continued adultery—when the legislature has generally concluded that adultery should not be criminally punished.

And indeed courts sometimes do take the view that “judicial application of equity-rooted remedies should be informed by—and, sometimes, altered significantly in deference to—the legislative policy judgments reflected in intervening statutory enactments, even where the statutes themselves would not directly reach the subject matter of the dispute before the court.” Texas courts, for instance, have so reasoned in refusing to authorize certain kinds of pre-suit depositions in libel, certain awards of prejudgment interest, and certain kinds of piercing of the corporate veil. In all those cases, courts looked closely at legislative judgments reflected in statutes that deal with similar questions, and tried to avoid judicial innovations that would conflict with those judgments.

Likewise, many courts have limited the equitable laches defense in light of a legislatively enacted statute of limitations, on the grounds that, “[t]o import laches as a defense to actions at law would pit the legislative value judgment embodied in a statute of limitations . . . against the equitable determinations of individual judges,” and thus “would alter the balance of power between legislatures and courts regarding the timeliness of claims.” Conversely, where a legislature has expressly authorized some tolling of statute of limitations, courts can rely on that legislative judgment in interpreting their own equitable principles: “[A] legislative policy judgment may be properly considered in determining the application of a common law [i.e., ‘judge-made’] doctrine such as equitable tolling.”

Indeed, some court opinions rejecting “obey-the-law” injunctions seem to reflect this concern with subjecting “defendants to contempt rather than the statutorily prescribed sanctions.” Congress, for instance, deliberately made employment discrimination, even repeated employment discrimination, a tort, not a crime. Enjoining a particular employer from engaging in discrimination would make such discrimination into contempt of court, courts stress. The courts generally don’t explain just why “subject[ing] the defendants to contempt proceedings” in such cases is wrong. But the reason may be that such proceedings would interfere with the legislative judgment to keep the criminal law out of employment discrimination cases.

Of course, a court that is open to considering legislative judgments when deciding whether to create an innovative remedy must answer the question: Just what judgment did the legislature make when repealing a criminal libel statute, beyond the necessary judgment that there ought not be such a statute?

Perhaps the legislature took the view that false and defamatory statements don’t merit criminal punishment; as I noted above, that seemed to be the view endorsed by the California Legislature (at least as to spoken words) and by the drafters of the Model Penal Code. If so, then this suggests that anti-libel injunctions, enforceable by punishment for criminal contempt, should likewise be rejected.[3]

But perhaps the legislature took the view that criminal libel law is too likely to chill a broad range of speech, because speakers know that they can be punished for any factual allegation, even one they think is accurate (so long as the jury errs, as juries might, about the speaker’s mens rea). If so, then that suggests that catchall injunctions, which likewise ban all knowing falsehoods about a particular person, should be rejected—but perhaps specific injunctions, which warn speakers away from specific claims that courts have already found to be false, might be permissible.

Or perhaps the legislature thought that people shouldn’t be imprisoned just for an isolated lie about someone, even a damaging lie, because such lies are so common—but the legislators might not have been contemplating what should be done about sustained campaigns of defamation. This would suggest that both catchall injunctions and specific injunctions, which are aimed at preventing such repeated defamation, would be consistent with that legislative judgment.

And, finally, perhaps the legislature lacked any widely shared judgment at all about the subject, other than that the criminal libel statute ought to be repealed. Maybe some legislators thought one thing, some thought another, and some simply voted for the repeal because it was part of a legislative package that gave them something else the wanted.[4]

Still, so long as courts take the view that judge-made principles should be developed in light of legislative decisions (rather than just that such principles shouldn’t outright violate express legislative commands), courts will have to infer something about the underlying legislative judgment. Perhaps the courts might err in their reading of what judgment the legislature made, but then the legislature can correct them. (A legislature can of course expressly forbid anti-libel injunctions; and, if my analysis in Part V is right, then it can expressly permit them.) In the meantime, if courts believe that the legislature has expressly rejected criminal punishments for libels, they shouldn’t recreate those criminal punishments through the route of injunctions and criminal contempt.

 

[1] See, e.g., 1978 Alaska Sess. Laws 118-19; 2005 Ark. Acts 7469-72, § 512; 1986 Cal. Stat. 311; 2012 Colo. Sess. Laws 391-92; 2015 Ga. Laws 390, Act 70 § 3-1; 1976 Iowa Acts ch. 1245, ch. 4 § 526; 2002 Md. Laws 686; 1978 N.J.L. ch. 95, § 2C:98-2; 1985 Or. Laws 759; Commonwealth v. Mason, 322 A.2d 357, 359 (1974) (Jones, C.J., concurring and dissenting) (noting that the Pennsylvania criminal libel law was repealed by 1972 Pa. Laws 1611, Act No. 334); 1998 R.I. Pub. Laws 324-25; 2009 Wash. Sess. Laws 597-98.

[2] The alienation of affections tort remains commonly used in North Carolina (with over 200 filings per year, and with the pattern in appellate cases suggesting that the filings are evenly split among men and women), and continues to exist in several other states. See Data from N.C. Administrative Office of Courts, 2000–08; Eugene Volokh, Alienation of Affections—Still Alive, Volokh Conspiracy, July 28, 2009, http://bit.ly/2ITTVDo. The alienation of affections tort can theoretically cover nonsexual behavior as well as adultery; to be precise, the criminal conversation tort is the one that focuses just on sex. But in the few jurisdictions where at least one of the torts survives—including in North Carolina, where the alienation tort seem to thrive—most such adultery-based cases are brought as alienation of affections cases.

[3] Of course, if the legislature’s judgment repealing criminal libel law had been made in a legal regime where injunctions were commonplace, one could have inferred that the legislators were leaving the possibility of criminally enforceable prohibitions on libel to the discretion of judges in civil cases. Say, for instance, that the legislature criminalizes nuisances and then repeals that criminal ban. In a system where injunctions against nuisance are routine, we shouldn’t infer that the legislature meant to preempt these traditionally accepted injunctions.

But when most criminal libel laws were repealed by various states, the conventional wisdom was that courts would not be enjoining libel. The legislature thus couldn’t reasonably be presumed to be preserving such a remedy. And the decision to repeal the criminal libel statute should be seen as barring “obey the [tort] law” injunctions that have the effect of reinstituting criminal libel law for the defendant (at least when the defendant is speaking about the plaintiff).

[4] Compare the statutory construction literature arguing that legislative intent ought not guide statutory interpretation because such intent generally can’t be determined. See, e.g., Frank H. Easterbrook, Statutes’ Domains, 50 U. Chi. L. Rev. 533, 547 (1983); John F. Manning, Textualism and the Equity of the Statute, 101 Colum. L. Rev. 1, 18–21 (2001); Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 Duke L.J. 511, 517.

[You might also read my earlier posts on the subject,

• Anti-Libel Injunctions and the Criminal Libel Connection
• The First Amendment and Criminal Libel Law
• The First Amendment and the Catchall Permanent Injunction
• The First Amendment and the Specific Preliminary Injunction
• How Specific Anti-Libel Injunctions Underprotect Speech
• The First Amendment and the Hybrid Permanent Injunction
• Restricting Injunctions to Libels on Matters of Private Concern?
• The Limited Role of Mens Rea in Hybrid Anti-Libel Injunctions
• The First Amendment and the Hybrid Preliminary Injunction
• Beyond the First Amendment: Anti-Libel Injunctions and Prosecutorial Discretion

Or you can read the whole article, which is forthcoming in the University of Pennsylvania Law Review, in PDF.]

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The Department of Justice has been dismissing child pornography cases in order to not reveal information about the software programs used as the basis for the charges.

An array of cases suggest serious problems with the tech tools used by federal authorities. But the private entities who developed these tools won’t submit them for independent inspection or hand over hardly any information about how they work, their error rates, or other critical information. As a result, potentially innocent people are being smeared as pedophiles and prosecuted as child porn collectors, while potentially guilty people are going free so these companies can protect “trade secrets.”

The situation suggests some of the many problems that can arise around public-private partnerships in catching criminals and the secretive digital surveillance software that it entails (software that’s being employed for far more than catching child predators).

With the child pornography cases, “the defendants are hardly the most sympathetic,” notes Tim Cushing at Techdirt. Yet that’s all the more reason why the government’s antics here are disturbing. Either the feds initially brought bad cases against people whom they just didn’t think would fight back, or they’re willing to let bad behavior go rather than face some public scrutiny.

An extensive investigation by ProPublica “found more than a dozen cases since 2011 that were dismissed either because of challenges to the software’s findings, or the refusal by the government or the maker to share the computer programs with defense attorneys, or both,” writes Jack Gillum. Many more cases raised issues with the software as a defense.

“Defense attorneys have long complained that the government’s secrecy claims may hamstring suspects seeking to prove that the software wrongly identified them,” notes Gillum. “But the growing success of their counterattack is also raising concerns that, by questioning the software used by investigators, some who trade in child pornography can avoid punishment.”

Courts have sought to overcome concerns that scrutiny would diminish the effectiveness of the software for law enforcement or infringe on intellectual property rights by ordering only secret and monitored third-party review processes. But federal prosecutors have rejected even these compromises, drawing worry that it’s not legitimate concerns driving their secrecy but a lack of confidence in the software’s efficacy or some other more nefarious reason.

Human Rights Watch (HRW) has raised questions about how much data (not just on defendants but on all Americans) these programs have been accessing and storing.

In February, HRW sent a letter to Justice Department officials expressing concerns about one such program, called the Child Protection System (CPS). TLO, the company behind the CPS system, has intervened in court cases to prevent disclosure of more information about the program or independent testing of it.

“Since the system is designed to flag people as suspected of having committed crimes, both its error rates and its potential to exceed constitutional bounds have implications for rights,” HRW states. Yet “it is unclear what information the Justice Department has about CPS’ potential for error (and on what basis).”

Prosecutors say they can’t share any details about it “because it is proprietary and not in the government’s possession,” notes HRW, which since 2016 has been researching cases involving the CPS system. “We fear that the government may be shielding its methods from scrutiny by relying on its arrangements with the non-profit,” states HRW. (Read more here.)

Another tool used in these cases, Torrential Downpour, was developed by the University of Massachusetts. The school has been fighting against the release of more information about Torrential Downpour, too. But defendants’ lawyers say it’s necessary after the program alerted authorities about alleged child porn on computers that couldn’t actually be found  anywhere on the physical devices.

“An examination of the software being used to build cases should be allowed, but the entities behind the software won’t allow it and the government is cutting defendants loose rather than giving them a chance to properly defend themselves against these very serious charges,” writes Cushing. “I supposed it ultimately works out for defendants, but it only encourages the government to tip the scales in its favor again when the next prosecution rolls around with the hopes the next defender of the accused isn’t quite as zealous”

Plus, if these defendants really are innocent, than the government has publicly and falsely smeared them as sickos and then balked at allowing them a true opportunity to clear their names.

“These defendants are not very popular, but a dangerous precedent is a dangerous precedent that affects everyone,” HRW’s Sarah St.Vincent told ProPublica. “And if the government drops cases or some charges to avoid scrutiny of the software, that could prevent victims from getting justice consistently. The government is effectively asserting sweeping surveillance powers but is then hiding from the courts what the software did and how it worked.”

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“If I weren’t in the class and I saw some of these speakers or people of certain stances walking around, I may feel uncomfortable,” she said. “But I think the way we do it in poli-rad is a very safe environment.”

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Twenty years ago, California’s pension system was riding high.

Investment earnings had averaged more than 10 percent annually for a decade, and most of the funds within the California Public Employees Retirement System (CalPERS) were running a surplus—meaning the funds had more than 100 percent of the assets needed to meet the projected liabilities as current workers retired. Lulled into a false sense of retirement security, state policymakers made the fateful decision to pass a law boosting pension payouts to public employees.

Supposedly, it would all be paid for by the ongoing, never-ending boom of the stock market. In an analysis provided to the state legislature at the time, CalPERS promised the new pension law would not cost “a dime of additional taxpayer money.” A separate analysis conducted by the legislature itself found that taxpayers’ contributions to the CalPERS system would “remain below the 1998-99 fiscal year ($766 million) for at least the next decade.” said the Assembly floor analysis of SB 400.

The funny thing about pension systems, though, is that the liabilities created today—that is, the promises made to current workers—don’t really become a problem for a few decades, until those workers retire.

Which is why, in California’s case, looking just 10 years into the future proved to be woefully myopic. Two decades later, the surplus is long gone and CalPERS is facing a $138 billion shortfall (that’s according to the system’s own rather sunny accounting; the actual total is likely higher).

But those higher pensions promised in 1999 must still be paid—and as a result, the number of retired California public employees getting six-figure annual pensions has doubled in just six years.

According to newly released data from Transparent California, a project of the Nevada Policy Research Institute, a free market think tank, the CalPERS system issued 30,969 pensions checks in 2018 that were worth $100,000 or more on an annualized basis—up from about 14,600 six-figure payouts in 2012. Of the $23 billion in pension benefits paid out by the CalPERS system last year, 17 percent went to the members of the state’s six-figure pension club.

California’s teacher pension system—the California State Teachers’ Retirement System (CalSTRS)—has seen a similarly sharp increase in six-figure pensions as teachers affected by the 1999 pension boost legislation have started heading into retirement. In 2018, CalSTRS handed out 15,559 pension checks worth $100,000 or more, up from just 6,033 six-figure pensions in 2011, according to Transparent California’s data.

Because of how public pension systems work, the new liabilities created by that 1999 pension boost will be haunting California’s state, local, and school budgets for decades to come. In fact, the worst has yet to arrive. According to a 2017 report from the Stanford Institute for Economic Policy Research, the state will have to spend $19 billion on the CalPERS and CalSTRS pension plans in 2030—up from about $9 billion this year. Those increasing costs, the Stanford report says, cannot be covered without significant cuts to existing government programs.

Because some education spending is fixed under California’s Prop 98 rules and public safety funding cannot be cut under other state rules, the state will likely have to slash spending on pretty much everything else—parks, social programs, housing subsidies—so it can continue cutting six-figure checks to a few thousand of its 40 million residents.

Contra what CalPERS said two decades ago, paying for all those lush retirement benefits is going to cost Californians a whole lot of dimes.

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Emily Oster is the parenting guru nerds have been waiting for. In her previous book, Expecting Better, Oster blew up the conventional wisdom around pregnancy using her training as an economist to dig into the academic literature on questions about what pregnant women can safely eat and drink, along with a variety of other hot-button topics. She was hailed (and occasionally vilified) for her finding that the occasional glass of wine or order of sushi did not pose a mortal danger to most uterus-dwellers.

In her new book, Cribsheet, the Brown University economist examines the evidence on best practices for babies and toddlers. Her advice for parents of the 0–3 crowd on breastfeeding, swaddling, toddler discipline, and more offers the same level of data-driven chill her fans have grown to expect.

In a wide-ranging podcast with Editor in Chief Katherine Mangu-Ward, Oster explains how to tell a good study from a bad one and why she thinks it’s important to help people make the best decisions for their families rather than assume there’s a single right answer.

As a bonus, she also breaks down that much-publicized study about eggs and offers some reassuring evidence that it’s OK to keep having those omelets for breakfast, no matter what you might have heard.

Subscribe, rate, and review our podcast at iTunes.

 

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