Tag: victims

The Court Tackles a Hard Case: Implications for ObamaCare?

The Supreme Court hears oral argument today in an important pre-emption case, Bruesewitz v. Wyeth, which asks whether the National Vaccine Injury Compensation Act of 1986 pre-empts state law “design defect” suits brought against vaccine manufacturers. I’ve discussed this complex case more fully in an op-ed at the Daily Caller, but in a nutshell, Congress passed the Act to address the risks inherent in vaccinations through a federal no-fault ”Vaccine Court” rather than through the vagaries of state tort law. It did so because the inability to make vaccines entirely safe, plus uncertainty surrounding causation, coupled with the penchant of state juries to discount those issues in favor of sympathetic plaintiffs, had rendered most manufacturers unwilling to produce needed vaccines at reasonable costs.  

In drafting the statute, however, Congress left things unclear, to put it charitably. Thus, the Court will have to make sense of this language:

No vaccine manufacturer shall be liable in a civil action for damages arising from a vaccine-related injury or death associated with the administration of a vaccine… if the injury or death resulted from side effects that were unavoidable even though the vaccine was properly prepared and was accompanied by proper directions and warnings.

Although the Act allows victims to sue over manufacturing defects, conduct that would subject a manufacturer to punitive damages, and a manufacturer’s failure to exercise due care, nowhere does it define “unavoidable”—and there’s the nub of the matter. In the case before the Court, a three-judge Third Circuit panel decided unanimously for Wyeth, as did the district court. But in another case five months earlier, a nine-member Georgia Supreme Court, facing similar facts, decided unanimously for the plaintiff.

And behind it all is the question whether Congress should have pre-empted state law in the first place. It probably should have here, but that’s a close call. And the implications for ObamaCare are not absent in this case, which could be a portent of the complex and uncertain litigation that lies ahead if the scheme is not repealed. As I say at the outset of my post, hard cases make bad law, but bad law too makes hard cases, and this is one. Does anyone think that ObamaCare is anything but bad law? We’ll know once we figure out “what’s in it,” as the lady said.

Speier (D-Silicon Valley) Sows Techno-panic

“Techno-Panics” are public and political crusades against the use of new media or technologies, particularly driven by the desire to protect children. As the moniker suggests, they’re not rational. Techno-panic is about imagined or trumped-up threats, often with a tenuous, coincidental, or potential relationship to the Internet. Adam Thierer and Berin Szoka of the Progress & Freedom Foundation have written extensively about techno-panics on the TechLiberationFront blog.

Talking about techno-panic does not deny the existence of serious problems. It merely identifies when policymakers and advocates lose their sense of proportion and react in ways that fail to address the genuine issues—such as censoring a web site because it reveals the fact that some few among a community of tens of millions of people will conspire to break the law.

You’d think that a congressional representative from the heart of Silicon Valley would not sow techno-panic, but here’s Jackie Speier (D-Calif.) on the Craigslist censorship issue:

“We can’t forget the victims, we can’t rest easy. Child-sex trafficking continues, and lawmakers need to fight future machinations of Internet-driven sites that peddle children.”

Of all representatives in Congress, Speier should know that Craigslist has been making it easier for law enforcement to locate and enforce the law against any perpetrators of crimes against children. Pushing them to rogue sites does law enforcement no good. Censoring Craiglist only masks the problem, which may be in the interest of politicians, but definitely not children.

On the Wisdom Not to Do Wrong

 Jim Harper may be “put off by the domestic political ramifications” of the continuing Ground Zero mosque debate — linking to my three POLITICO Arena posts over the weekend, when the story broke, and Chris Preble’s very different Cato@Liberty post on Monday — but that’s what this debate is all about. It’s not about the law or the Constitution, at bottom, because the law is clear: we respect the right to build that mosque there, even if it would not be prudent or wise to do so.

Thus, he misses the point when he cites “conservative icon Ted Olson” who, Jim says, “expresses well how standing by our constitutional values is good counterterrorism signaling.” That may or may not be good counterterrorism signaling, but those of us who oppose this mosque being situated there are standing by our constitutional values, contrary to the implication of Jim’s contention. We’re defending the right the Constitution protects, while engaging in the robust debate it equally protects — arguing that building the mosque there, as Charles Krauthammer put it in this morning’s Washington Post, “is not just insensitive but provocative,” given the facts of the matter.

But that’s not the only non-sequitur in Jim’s argument. He goes on to say:

Islam did not attack the United States on 9/11. It is simple collectivism—the denial of individual agency that libertarians reject—to believe that the tiny band of thugs who perpetrated the 9/11 attacks speak for an entire religion, culture, or creed. Our sympathy to families of 9/11 victims and our vestigial fears should not allow us to indulge gross and wrong generalizations about individuals of any faith.

Who’s saying that? Does Jim believe that those of us on the other side cannot distinguish the 19 long-dead “tiny band of thugs” — and all who supported them and continue to support what they did, as manifest around the world almost daily — from the great majority of Muslims who do not support Islamic terrorism?

There is a problem in the other direction, however, with those who minimize or dismiss “our vestigial fears.” The war against terrorism, which we are likely to be in for some time, requires a sober assessment of the circumstances we’re facing, neither understating nor overstating them. And one aspect of that is public opinion, including opinion, in particular, in the Muslim-American community. This morning’s New York Times has a page-one story about the divide in that community over the mosque issue. It’s those in that community who understand this issue that we need to encourage to come forward and stand for true American principles — including the principle that not everything a person has a right to do is right to do. It’s no more complicated than that.

Stalin Merits No Memorial, But His Victims Do

I have written previously about the damnable decision to include a bust of Stalin in the new National D-Day Memorial in Bedford, Virginia.  An excerpt of my attack on this misguided move:

Memorials are monuments to fallen heroes, not historical dioramas. There is no statue of Stephen Douglas at the Lincoln Memorial, no bust of Wendell Willkie at the FDR Memorial, and no plaques honoring Axis dead at our WWII Memorial. Moreover — and perhaps most importantly from a historical perspective – Stalin had no role in D-Day; the invasion of Normandy by U.S., British, Canadian, Australian, Free French, and other Western forces.

While there is no question that Stalin, by virtue of commanding the army fighting on the Eastern Front, played an indispensable role in defeating Hitler, it should escape no one’s memory that he too was an evil, mass-murdering despot.

As it happens, this past Sunday was the anniversary of D-Day, so of course this travesty is in the news again.  Here’s a statement from Lee Edwards, chairman of the Victims of Communism Memorial Foundation:

Clearly, the National D-Day Memorial Foundation knows it made a monumental mistake by including Stalin in its Memorial. It tried to justify its action by adding a plaque citing the tyrant’s “tens of millions of victims” and then to minimize it by privately installing the bust five days before the formal dedication of the D-Day Memorial on June 6.

But the Stalin bust remains as does the profound injury to the memory of those who launched a crusade for freedom in Europe in June 1944. The honorable thing for the National D-Day Memorial Foundation to do is to remove the bust without delay.

Felicitously, at 10 a.m. today there will be a wreath-laying at the Victims of Communism Memorial in Washington (corner of Massachusetts Ave. and New Jersey Ave. NW):

 

This event will mark the memorial’s third anniversary, as well as signaling our continued vigilance against the deadliest ideology in human history. 

According to a VCMF press statement, at least 12 foreign embassies and nearly 20 ethnic organizations will lay wreaths in honor of the more than 100 million victims of Communism.  Among the invited speakers are Representatives Dan Lipinski of Illinois and Thaddeus McCotter of Michigan, Swedish MP Göran Lindblad, and Tiananmen Square activist Dr. Yang Jianli.  For more information, contact Jaron Janson or Steve Miller at at 202-536-2373 or vocmemorial [at] aol [dot] com.