The Deeply Captured Situation of “Defensive Medicine”

Sidney Shapiro, Thomas Owen McGarity, Nicholas Vidargas, and James Goodwin, have recently published their White Paper, titled “The Truth About Torts: Defensive Medicine and the Unsupported Case for Medical Malpractice ‘Reform’” on SSRN.  Here’s the abstract.

In the debate about health care reform, “defensive medicine” has become a convenient culprit for rising costs and especially rising physician malpractice premiums. Vaguely defined, the phrase, “defensive medicine,” is used to suggest that physicians make medical decisions to avoid potential litigation, instead of with their patients’ health and safety in mind. On the strength of this assertion alone, some policymakers argue for restricting Americans’ right to bring suit to recover damages for medical malpractice. This report demonstrates, however, that the proponents of medical malpractice “reform” lack persuasive evidence that tort litigation against physicians encourages them to make medical decisions that they would not have made otherwise.

Powerful business interests have compelling reasons to perpetuate the “defensive medicine” myth. Because the national health care debate has been framed around costs – not patient health and safety or access to care – the “defensive medicine” message has been successfully deployed to restrict Americans’ access to the courts in many states. Meanwhile, “defensive medicine” also serves as a politically expedient straw man, allowing policymakers and the insurance industry to ignore or obscure the real drivers of rising medical costs, including the high costs of prescription drugs; the high demand for, and increasing use of, state-of-the-art technology; the growing incidence of chronic diseases; and an aging population that lives longer and consumes more medical care.

This report first establishes that an intact and robust civil justice system is necessary to the health of society and exposes how rarely doctors are actually being sued. Next, it examines why doctors order tests and procedures. It then surveys available empirical evidence showing that a supposed “defensive medicine” mindset has little impact on medical decisions or on medical practice costs. The report also exposes extraordinary shortcomings in the methodology and academic rigor of the evidence most frequently cited by civil justice opponents.

The evidence reveals that “defensive medicine” is largely a myth, proffered by interests intent on limiting citizen access to the courts for deserving cases, leaving severely injured patients with no other recourse for obtaining the corrective justice they deserve. These changes would limit the deterrent effect of civil litigation and diminish the regulatory backstop that the civil justice system provides to the professional licensing system, leading to more medical errors. Restricting lawsuits might save doctors a negligible amount on malpractice premiums but the vast majority of any savings will most certainly line the pockets of the insurance companies demanding these restrictions. On the other hand, buying into this myth has very real and dangerous consequences. Allowing civil justice opponents to pretend that constraining the civil justice system equates to meaningful health care reform distracts us from doing the things that must be done to fix the system, including avoiding the 98,000 deaths caused by preventable medical errors every year and reducing the unacceptable number of uninsured Americans.

Download report for free here.

For a related recent briefing book assembled by the Center for Justice & Democracy click here. 

Related Situationist posts:

• Do Doctors Lack Empathy?
• The Situation of State Judiciaries
• The Cultural Situation of Tort Law
• Situationist Torts – Abstract
• Mark Lanier visits Professor Jon Hanson’s Tort Class (web cast)
• Why Torts Die – Abstract

The Deep Capture of Financial Institutions

Lawrence G. Baxter, at Duke Law School, recently wrote an excellent situationist article, titled “Capture in Financial Regulation: Can We Redirect It Toward the Common Good?” (forthcoming in 21 Cornell Journal of Law & Public Policy).  Here’s the abstract.

* * *

“Regulatory capture” is central to regulatory analysis yet is a troublesome concept. It is difficult to prove and sometimes seems refuted by outcomes unfavorable to powerful interests. Nevertheless, the process of bank regulation and supervision fosters a closeness between regulator and regulated that would seem to be conducive to “capture” or at least to fostering undue sympathy by regulators for the companies they oversee. The influence of very large financial institutions has also become so great that financial regulation appears to have become excessively distorted in favor of these entities and to the detriment of many other legitimate interests, including those of taxpayers, smaller financial institutions, and the promotion of general economic growth. So “deep capture” by the larger elements of the financial industry of the regulatory process might well have become a very significant problem. At the same time, it is unrealistic to assume that participants in the policy making and policy implementation process will not be trying to exert influence on the outcome of any regulation that impacts them. Attempts to maximize influence are surely an inevitable element of the ongoing regulatory process. And it is unrealistic to try to avoid extensive industry input altogether. Regulators and regulations depend on frequent and sometimes intense interaction with various sectors of the industry. To promote sound regulatory policy, we should renew efforts to shape the environmental conditions in which the competition for regulatory outcomes takes place, so that policy more favorable to the general public interest becomes more likely. This involves a combination of measures, many of which are quite traditional but some of which are too often neglected. Such measures might include: strengthening “tripartism,” advocated by Ayres and Braithwaite, by facilitating broader interest group participation in the regulatory process; limiting the influence of dominant participants by reducing their scale; properly structuring, resourcing and supporting regulatory agencies and regulators; “rotating” regulators so that they are less likely to develop unduly empathic relationships with the institutions they regulate; tightening the rules governing the “revolving door;” and making greater use of independent consultative and review bodies.

* * *

Download the paper here.

Related Situationist posts:

• A Neuroscience Perspective on the Financial Crises
• The Situation of Mortgage Defaults
• The Situation of the 2008 Economic Crisis,
• The Deeply Captured Situation of the Economic Crisis,
• The Situation of Subprime Mortgage Contracts – Abstract,
• Retroactive Liability for our Financial Woes,
• The Situation of Credit Card Regulation,
• The Financial Squeeze: Bad Choices or Bad Situations?
• The Situation of the American Middle Class,
• Warren on the Situation of Credit,
• Are Debtors Rational Actors or Situational Characters?,”
  
• “The Situation of College Debt” – Part I, Part II, Part III, and Part IV.
• Our Stake in Corporate Behavior,
• Larry Lessig’s Situationism,
• The Situation of Policy Research and Policy Outcomes,
• Industry-Funded Research,
• De-Capturing the FDA,
• The Situation of Talk Radio,
• Deep Capture – Part X, and
  
• The company ‘had no control or influence over the research’.

You can review hundreds of Situationist posts related to the topic of “deep capture” here

Can The Law Go Upstream?

Roger Magnusson, Lawrence O. Gostin, and David  Studdert recently posted their paper, “Can Law Improve Prevention and Treatment of Cancer?” on SSRN:

The December 2011 issue of Public Health (the Journal of the Royal Society for Public Health) contains a symposium entitled: Legislate, Regulate, Litigate? Legal approaches to the prevention and treatment of cancer. This symposium explores the possibilities for using law and regulation – both internationally and at the national level – as the policy instrument for preventing and improving the treatment of cancer and other leading non-communicable diseases (NCDs). In this editorial, we argue that there is an urgent need for more legal scholarship on cancer and other leading NCDs, as well as greater dialogue between lawyers, public health practitioners and policy-makers about priorities for law reform, and feasible legal strategies for reducing the prevalence of leading risk factors. The editorial discusses two important challenges that frequently stand in the way of a more effective use of law in this area. The first is the tendency to dismiss risk factors for NCDs as purely a matter of individual ‘personal responsibility’; the second is the fact that effective regulatory responses to risks for cancer and NCDs will in many cases provoke conflict with the tobacco, alcohol and food industries. After briefly identifying some of the strategies that law can deploy in the prevention of NCDs, we briefly introduce each of the ten papers that make up the symposium.

You can download the paper for free here.

Related Situationist posts:

• Upstream on Environmental Health and Justice
• The Toxic Situation of Cosmetics,
• Our Carcinogenic Situation,
• Juliet Schor, ‘Colossal Failure: The Output Bias of Market Economies’, and
• The Need for a Situationist Morality.”

The Regulatory Situation of Smoking

From The Independent:

More than half a century after scientists uncovered the link between smoking and cancer – triggering a war between health campaigners and the cigarette industry – big tobacco is thriving.

Despite the known catastrophic effects on health of smoking, profits from tobacco continue to soar and sales of cigarettes have increased: they have risen from 5,000 billion sticks a year in the 1990s to 5,900 billion a year in 2009. They now kill more people annually than alcohol, Aids, car accidents, illegal drugs, murders and suicides combined.

* * *

The West now consumes fewer and fewer of the world’s cigarettes: richer countries have changed – from smoking 38 per cent of the world total in 1990, they cut down to 24 per cent in 2009. Meanwhile, the developing world’s share in global cigarette sales has increased sharply, rising to 76 per cent in 2009.

An investigation by The Independent on Sunday reveals that tobacco firms have taken advantage of lax marketing rules in developing countries by aggressively promoting cigarettes to new, young consumers, while using lawyers, lobby groups and carefully selected statistics to bully governments that attempt to quash the industry in the West.

In 2010, the big four tobacco companies – Philip Morris International, British American Tobacco, Japan Tobacco and Imperial Tobacco – made more than £27bn profit, up from £26bn in 2009.

The price of their profits will be measured in human lives. In the 20th century, some 100 million people were killed by tobacco use. If current trends continue, tobacco will kill a billion people in the 21st century.

* * *

Anna Gilmore, professor of public health at the University of Bath, said: “What most people don’t realise is that, although sales are falling in the West, industry profits are increasing. These companies remain some of the most profitable in the world. This is thanks in part to their endless inventive ways of undermining and circumventing regulation. They’re trying to reinvent their image to ingratiate themselves with governments, but behind the scenes it’s business as usual.”

* * *

In Indonesia alone there are 21 million child smokers. There is little to stop companies promoting cigarettes to young people. In countries such as Nigeria, Ukraine and Brazil, tobacco companies have sponsored club nights or parties aimed at attracting new young users. In Russia, attempts to entice women smokers have included packaging made to look like jewel-encrusted perfume bottles and even selling cigarettes branded by the fashion house Yves Saint Laurent.

Dr Armando Peruga, programme manager for the WHO’s tobacco free initiative, said: “We need to do more. We need to stop the tobacco industry promoting themselves as normal corporate citizens when they are killing people every day. We are lagging behind in establishing comprehensive bans on advertising, marketing, promotion and sponsorship.”

* * *

Laurent Huber, director of the Framework Convention Alliance on tobacco control, said: “In countries like Uruguay, the tobacco industry uses its vast wealth to tie up public health measures in court battles. Win or lose, this has a chilling effect on other governments.”

These tricks are by no means confined to the less-regulated emerging countries. In Australia, which will become the first country to introduce plain packaging for cigarettes by law, the industry has been accused of scaremongering against the measures by threatening to flood the market with cheap fags.

In Britain, the industry is also prone to taking any measures necessary to keep regulation at bay. This autumn a group of tobacco companies is taking the Government to court over its proposals to ban cigarette displays in all shops.

More often in the UK, though, Big Tobacco’s attempts to alter public opinion are more subtle. A study from Action on Smoking and Health (ASH), out this week, scrutinises the credibility of economic arguments used by the industry to fight back against legislation. For example, when Christopher Ogden, chief executive of the Tobacco Manufacturers Association, said in 2010 that the smoking ban had severely threatened the pub and bingo industry because of lost jobs and livelihoods, the reality was a little different. Data from the Office for National Statistics shows a net increase in the number of people visiting pubs since the smoking ban. When England went smoke-free in 2007, the number of premises licensed for alcohol increased by 5 per cent, and it has continued to grow every year since.

Deborah Arnott, chief executive of ASH, said: “In line with our international treaty obligations, the UK government has not only banned advertising and put health warnings on packs, but also committed to protect public health policies from the commercial and vested interests of the tobacco industry. To get round this, the industry uses front groups to covertly lobby politicians, arguing that smoke-free legislation has destroyed the pub trade, and that putting tobacco out of sight in shops will both be ineffective and put corner shops out of business.

More.

Related Situationist posts.

• The Century of Dipositionism – Part I
• “Deep Capture – Part VII,”
• “Deep Capture – Part IX,”
• “Industry-Funded Research,”
• “Industry-Funded Research – Part II,”
• “Promoting Smoking through Situation,”
• “Captured Science.” and
  
• The company “had no control or influence over the research” . . . .

News about the Captured Situation of Food Policy

From the New York Times:

Domino’s Pizza was hurting early last year. Domestic sales had fallen, and a survey of big pizza chain customers left the company tied for the worst tasting pies.

Then help arrived from an organization called Dairy Management. It teamed up with Domino’s to develop a new line of pizzas with 40 percent more cheese, and proceeded to devise and pay for a $12 million marketing campaign.

Consumers devoured the cheesier pizza, and sales soared by double digits. “This partnership is clearly working,” Brandon Solano, the Domino’s vice president for brand innovation, said in a statement to The New York Times.

But as healthy as this pizza has been for Domino’s, one slice contains as much as two-thirds of a day’s maximum recommended amount of saturated fat, which has been linked to heart disease and is high in calories.

And Dairy Management, which has made cheese its cause, is not a private business consultant. It is a marketing creation of the United States Department of Agriculture — the same agency at the center of a federal anti-obesity drive that discourages over-consumption of some of the very foods Dairy Management is vigorously promoting.

Urged on by government warnings about saturated fat, Americans have been moving toward low-fat milk for decades, leaving a surplus of whole milk and milk fat. Yet the government, through Dairy Management, is engaged in an effort to find ways to get dairy back into Americans’ diets, primarily through cheese.

Americans now eat an average of 33 pounds of cheese a year, nearly triple the 1970 rate. Cheese has become the largest source of saturated fat; an ounce of many cheeses contains as much saturated fat as a glass of whole milk.

When Michelle Obama implored restaurateurs in September to help fight obesity, she cited the proliferation of cheeseburgers and macaroni and cheese. “I want to challenge every restaurant to offer healthy menu options,” she told the National Restaurant Association’s annual meeting.

But in a series of confidential agreements approved by agriculture secretaries in both the Bush and Obama administrations, Dairy Management has worked with restaurants to expand their menus with cheese-laden products.

Read the entire article here.

* * *

From the Guardian:

The Department of Health is putting the fast food companies McDonald’s and KFC and processed food and drink manufacturers such as PepsiCo, Kellogg’s, Unilever, Mars and Diageo at the heart of writing government policy on obesity, alcohol and diet-related disease, the Guardian has learned.

In an overhaul of public health, said by campaign groups to be the equivalent of handing smoking policy over to the tobacco industry, health secretary Andrew Lansley has set up five “responsibility deal” networks with business, co-chaired by ministers, to come up with policies. Some of these are expected to be used in the public health white paper due in the next month.

The groups are dominated by food and alcohol industry members, who have been invited to suggest measures to tackle public health crises. Working alongside them are public interest health and consumer groups including Which?, Cancer Research UK and the Faculty of Public Health. The alcohol responsibility deal network is chaired by the head of the lobby group the Wine and Spirit Trade Association. The food network to tackle diet and health problems includes processed food manufacturers, fast food companies, and Compass, the catering company famously pilloried by Jamie Oliver for its school menus of turkey twizzlers. The food deal’s sub-group on calories is chaired by PepsiCo, owner of Walkers crisps.

The leading supermarkets are an equally strong presence, while the responsibility deal’s physical activity group is chaired by the Fitness Industry Association, which is the lobby group for private gyms and personal trainers.

In early meetings, these commercial partners have been invited to draft priorities and identify barriers, such as EU legislation, that they would like removed. They have been assured by Lansley that he wants to explore voluntary not regulatory approaches, and to support them in removing obstacles. Using the pricing of food or alcohol to change consumption has been ruled out. One group was told that the health department did not want to lead, but rather hear from its members what should be done.

Read the entire article here.

* * *

For a sample of related Situationist posts, see “The Policy Situation of Obesity,” “Innovative Policy: Zoning for Health,” or review the collection of posts here.

The Situation of the 2008 Economic Crisis

Charles Furgeson has produced a powerful documentary, “Inside Job,” about the deep capture of financial (de)regulation.  Here’s the trailer.

* * *

* * *

For a sample of related Situationist posts, see “The Deeply Captured Situation of the Economic Crisis,” “Our Stake in Corporate Behavior,” “Larry Lessig’s Situationism,” “The Situation of Policy Research and Policy Outcomes,” “Industry-Funded Research,” “De-Capturing the FDA,” “The Situation of Talk Radio,” “Deep Capture – Part X,” and “The company ‘had no control or influence over the research’.”

The Greasy Situation of University Research

A new report, “Big Oil Goes to College,” by the Center for American Progress examines how research universities that accept millions of dollars from oil companies have failed to shield themselves from corporate influence.  Here is an excerpt from the report’s introduction.

* * *

The world’s largest oil companies are showing surprising interest in financing alternative energy research at U.S. universities. Over the past decade, five of the world’s top 10 oil companies—ExxonMobil Corp., Chevron Corp., BP PLC, Royal Dutch Shell Group, and ConocoPhillips Co.—and other large traditional energy companies with a direct commercial stake in future energy markets have forged dozens of multi-year, multi-million-dollar alliances with top U.S. universities and scientists to carry out energy-related research. Much of this funding by “Big Oil” is being used for research into new sources of alternative energy and renewable energy, mostly biofuels.

Why are highly profitable oil and other large corporations increasingly turning to U.S. universities to perform their commercial research and development instead of conducting this work in-house? Why, in turn, are U.S. universities opening their doors to Big Oil? And when they do, how well are U.S. universities balancing the needs of their commercial sponsors with their own academic missions and public-interest obligations, given their heavy reliance on government research funding and other forms of taxpayer support?

The answers to these three questions are critical to energy-related research and development in our country, given the current global-warming crisis and the role that academic experts have traditionally played in providing the public with impartial research, analysis, and advice. To unpack these questions and help find answers, this report provides a detailed examination of 10 university-industry agreements that together total $833 million in confirmed corporate funding (over 10 years) for energy research funding on campus. Copies of these contractual agreements were obtained largely through state-level public record act requests (see the table on pages 13 and 14 for a list of these 10 agreements, and see page 15 for the methodology used for obtaining and analyzing them). Each agreement spells out the precise legal terms, conditions, and intellectualproperty provisions that govern how this sponsored research is carried out by the faculty and students on campus. (See methodology on page 15 for a discussion of how practices that are not required in these conflicts fit into the analysis.)

Independent, outside legal experts then performed a detailed analysis of each agreement. These experts’ detailed contract reviews may be found in Appendices 1 through 10 beginning on page 75 of this report, and include responses from a number of the universities that entered into these agreements. It should be noted that our external reviewers’ rankings for several of the “Contract Review Questions” are subjective because interpretations of law and other intellectual property terms cannot be strictly quantified. Also, the provisions in these contracts have not to our knowledge been tested in a court of law, so their “legal” meaning has not been definitively established.

The results of this report’s analysis of these 10 large-scale university-industry contracts raise troubling questions about the ability of U.S. universities to adequately safeguard their core academic and public-interest functions when negotiating research contracts with large corporate funders. This report identifies eight major areas where these contracts leave the door open to serious limitations on academic freedom and research independence. Here are just a few brief highlights:

• In nine of the 10 energy-research agreements we analyzed, the university partners failed to retain majority academic control over the central governing body charged with directing the university-industry alliance. Four of the 10 alliances actually give the industry sponsors full governance control.
• Eight of the 10 agreements permit the corporate sponsor or sponsors to fully control both the evaluation and selection of faculty research proposals in each new grant cycle.
• None of the 10 agreements requires faculty research proposals to be evaluated and awarded funding based on independent expert peer review, the traditional method for awarding academic and scientific research grants fairly and impartially based on scientific merit.
• Eight of the 10 alliance agreements fail to specify transparently, in advance, how faculty may apply for alliance funding, and what the specific evaluation and selection criteria will be.
• Nine of the 10 agreements call for no specific management of financial conflicts of interest related to the alliance and its research functions. None of these agreements, for example, specifies that committee members charged with evaluating and selecting faculty research proposals must be impartial, and may not award corporate funding to themselves. (See summary of main findings for details, pages 52-59, and the Appendices beginning on page 75.)

To our knowledge, this report represents the first time independent analysts have systematically examined a set of written university-industry agreements within a specific research area—in this case, the energy R&D sector—to evaluate how well they balance the goals of the corporate sponsors to produce commercial research that advances business profits with the missions of American universities to perform high-quality, disinterested academic research that advances public knowledge for the betterment of society.

* * *

You can read or download the entire report here. For a sample of related Situationist posts, see “The Deeply Captured Situation of Spilling Oil,” “The Deeply Captured Situation of the Economic Crisis,” “Our Stake in Corporate Behavior,” “Tushnet on Teles and The Situation of Ideas – Abstract,” “Larry Lessig’s Situationism,” “The Situation of Policy Research and Policy Outcomes,” “Reclaiming Corporate Law in a New Gilded Age – Abstract,” “The Illusion of Wall Street Reform,” “Industry-Funded Research,” “The Situation of Medical Research,” “The Situation of Talk Radio,” “The company ‘had no control or influence over the research’ . . . .,” “The Situation of University Research,” “Captured Science.”

The Deeply Captured Situation of Medicine

From PBS’s Need to Know:

Prescription drug Avandia was once the top-selling diabetes drug in the world — and it still helps more than half a million Americans balance their blood sugar levels. But a Food and Drug Administration panel dealt the drug a blow this week that may have some diabetes sufferers questioning whether they want to use it.

The debate focused on whether Avandia, which is acknowledged to be one of the most effective drugs for treating Type 2 diabetes, comes with dangerous side effects: An increase in a patient’s chance of suffering a stroke or heart attack, and dying from it.

In the end, while a majority of the 33-member panel did agree that Avandia, compared to other diabetes drugs, does increase risk for cardiovascular problems, they didn’t agree that it increases a user’s risk of death. The FDA will decide if and how it will act on the panel’s recommendation soon. Whatever it decides, the drug’s reputation has already been tarnished.

Need to Know’s Jon Meacham sat down with Dr. Jerome Kassirer, former editor-in-chief of the New England Journal of Medicine, to discuss the state of the FDA today in light of the Avandia ruling. Kassirer talked about the conditions that make it possible for drugs such as Fen-phen, Vioxx and now Avandia, the latest drug that may be pulled from the market, to reach consumers.

* * *

Vodpod videos no longer available.

* * *

For a sample of related Situationist posts, see “Tushnet on Teles and The Situation of Ideas – Abstract,” “Larry Lessig’s Situationism,” “Industry-Funded Research,” “The Situation of Medical Research,” “The company ‘had no control or influence over the research’ . . . .,” “Mark Lanier visits Professor Jon Hanson’s Tort Class (web cast),” “The Situation of University Research,” “Captured Science.”

The Deeply Captured Situation of Spilling Oil

From TED.com:  The Gulf oil spill dwarfs comprehension, but we know this much: it’s bad. Carl Safina scrapes out the facts in this blood-boiling cross-examination, arguing that the consequences will stretch far beyond the Gulf — and many so-called solutions are making the situation worse.

* * *

* * *

“The Deeply Captured Situation of the Economic Crisis,” “Our Stake in Corporate Behavior,” “Tushnet on Teles and The Situation of Ideas – Abstract,” “Larry Lessig’s Situationism,” “The Situation of Policy Research and Policy Outcomes,” “Reclaiming Corporate Law in a New Gilded Age – Abstract,” “The Illusion of Wall Street Reform,” “Industry-Funded Research,” “The Situation of Medical Research,” “The Situation of Talk Radio,” “The company ‘had no control or influence over the research’ . . . .,” “The Situation of University Research,” “Captured Science.”

Clarence Darrow on the Situation of Crime and Criminals

“Crime and Criminals: Address to the Prisoners in the Chicago Jail” (1902)

Preface

This address is a stenographic report of a talk made to the prisoners in the Chicago jail. Some of my good friends have insisted that while my theories are true, I should not have given them to the inmates of a jail.

Realizing the force of the suggestion that the truth should not be spoken to all people, I have caused these remarks to be printed on rather good paper and in a somewhat expensive form. In this way the truth does not become cheap and vulgar, and is only placed before those whose intelligence and affluence will prevent their being influenced by it.
—Clarence Darrow

Crime and Criminals

If I looked at jails and crimes and prisoners in the way the ordinary person does, I should not speak on this subject to you. The reason I talk to you on the question of crime, its cause and cure, is because I really do not in the least believe in crime. There is no such thing as a crime as the word is generally understood. I do not believe there is any sort of distinction between the real moral condition of the people in and out of jail. One is just as good as the other. The people here can no more help being here than the people outside can avoid being outside. I do not believe that people are in jail because they deserve to be. They are in jail simply because they cannot avoid it on account of circumstances which are entirely beyond their control and for which they are in no way responsible.

I suppose a great many people on the outside would say I was doing you harm if they should hear what I say to you this afternoon, but you cannot be hurt a great deal anyway, so it will not matter. Good people outside would say that I was really teaching you things that were calculated to injure society, but it’s worth while now and then to hear something different from what you ordinarily get from preachers and the like. These will tell you that you should be good and then you will get rich and be happy. Of course we know that people do not get rich by being good, and that is the reason why so many of you people try to get rich some other way, only you do not understand how to do it quite as well as the fellow outside.

There are people who think that everything in this world is an accident. But really there is no such thing as an accident. A great many folks admit that many of the people in jail ought not to be there, and many who are outside ought to be in. I think none of them ought to be here. There ought to be no jails, and if it were not for the fact that the people on the outside are so grasping and heartless in their dealings with the people on the inside, there would be no such institution as jails.

I do not want you to believe that I think all you people here are angels. I do not think that. You are people of all kinds, all of you doing the best you can, and that is evidently not very well — you are people of all kinds and conditions and under all circumstances. In one sense everybody is equally good and equally bad. We all do the best we can under the circumstances. But as to the exact things for which you are sent here, some of you are guilty and did the particular act because you needed the money. Some of you did it because you are in the habit of doing it, and some of you because you are born to it, and it comes to be as natural as it does, for instance, for me to be good.

Most of you probably have nothing against me, and most of you would treat me the same as any other person would; probably better than some of the people on the outside would treat me, because you think I believe in you and they know I do not believe in them. While you would not have the least thing against me in the world you might pick my pockets. I do not think all of you would, but I think some of you would. You would not have anything against me, but that’s your profession, a few of you. Some of the rest of you, if my doors were unlocked, might come in if you saw anything you wanted — not out of malice to me, but because that is your trade. There is no doubt there are quite a number of people in this jail who would pick my pockets. And still I know this, that when I get outside pretty nearly everybody picks my pocket. There may be some of you who would hold up a man on the street, if you did not happen to have something else to do, and needed the money; but when I want to light my house or my office the gas company holds me up. They charge me one dollar for something that is worth twenty-five cents, and still all these people are good people; they are pillars of society and support the churches, and they are respectable.

When I ride on the street cars, I am held up — I pay five cents for a ride that is worth two and a half cents, simply because a body of men have bribed the city council and the legislature, so that all the rest of us have to pay tribute to them. If I do not wish to fall into the clutches of the gas trust and choose to burn oil instead of gas, then good Mr. Rockefeller holds me up, and he uses a certain portion of his money to build universities and support churches which are engaged in telling us how to be good. Some of you are here for obtaining property under false pretenses — yet I pick up a great Sunday paper and read the advertisements of a merchant prince — “Shirt waists for 39 cents, marked down from $3.00.”

When I read the advertisements in the paper I see they are all lies. When I want to get out and find a place to stand anywhere on the face of the earth, I find that it has all been taken up long ago before I came here, and before you came here, and somebody says, “Get off, swim into the lake, fly into the air; go anywhere, but get off.” That is because these people have the police and they have the jails and judges and the lawyers and the soldiers and all the rest of them to take care of the earth and drive everybody off that comes in their way. A great many people will tell you that all this is true, but that it does not excuse you. These facts do not excuse some fellow who reaches into my pocket and takes out a five dollar bill; the fact that the gas company bribes the members of the legislature from year to year, and fixes the law, so that all you people are compelled to be “fleeced” whenever you deal with them; the fact that the street car companies and the gas companies have control of the streets and the fact that the landlords own all the earth, they say, has nothing to do with you.

Let us see whether there is any connection between the crimes of the respectable classes and your presence in the jail. Many of you people are in jail because you have really committed burglary. Many of you, because you have stolen something; in the meaning of the law, you have taken some other person’s property. Some of you have entered a store and carried off a pair of shoes because you did not have the price. Possibly some of you have committed murder. I cannot tell what all of you did. There are a great many people here who have done some of these things who really do not know themselves why they did them. I think I know why you did them — every one of you; you did these things because you were bound to do them. It looked to you at the time as if you had a chance to do them or not, as you saw fit, but still after all you had no choice. There may be people here who had some money in their pockets and who still went out and got some more money in a way society forbids. Now you may not yourselves see exactly why it was you did this thing, but if you look at the question deeply enough and carefully enough you would see that there were circumstances that drove you to do exactly the thing which you did. You could not help it any more than we outside can help taking the positions that we take. The reformers who tell you to be good and you will be happy, and the people on the outside who have property to protect — they think that the only way to do it is by building jails and locking you up in cells on week days and praying for you Sundays.

I think that all of this has nothing whatever to do with right conduct. I think it is very easily seen what has to do with right conduct. Some so-called criminals — and I will use this word because it is handy, it means nothing to me — I speak of the criminals who get caught as distinguished from the criminals who catch them — some of these so-called criminals are in jail for the first offenses, but nine-tenths of you are in jail because you did not have a good lawyer and of course you did not have a good lawyer because you did not have enough money to pay a good lawyer. There is no very great danger of a rich man going to jail. Some of you may be here for the first time. If we would open the doors and let you out, and leave the laws as they are today, some of you would be back tomorrow. This is about as good a place as you can get anyway. There are many people here who are so in the habit of coming that they would not know where else to go. There are people who are born with the tendency to break into jail every chance they get, and they cannot avoid it. You cannot figure out your life and see why it was, but still there is a reason for it, and if we were all wise and knew all the facts we could figure it out.

In the first place, there are a good many more people who go to jail in the winter time than in summer. Why is this? Is it because people are more wicked in winter? No, it is because the coal trust begins to get in its grip in the winter. A few gentlemen take possession of the coal, and unless the people will pay $7 or $8 a ton for something that is worth $3, they will have to freeze. Then there is nothing to do but break into jail, and so there are many more in jail in the winter than in summer. It costs more for gas in the winter because the nights are longer, and people go to jail to save gas bills. The jails are electric lighted. You may not know it, but these economic laws are working all the time, whether we know it or do not know it.

There are more people go to jail in hard times than in good times — few people comparatively go to jail except when they are hard up. They go to jail because they have no other place to go. They may not know why, but it is true all the same. People are not more wicked in hard times. That is not the reason. The fact is true all over the world that in hard times more people go to jail than in good times, and in winter more people go to jail than in summer. Of course it is pretty hard times for people who go to jail at any time. The people who go to jail are almost always poor people — people who have no other place to live first and last. When times are hard then you find large numbers of people who go to jail who would not otherwise be in jail.

Long ago Mr. Buckle, who was a great philosopher and historian, collected facts and he showed that the number of people who are arrested increased just as the price of food increased. When they put up the price of gas ten cents a thousand I do not know who will go to jail, but I do know that a certain number of people will go. When the meat combine raises the price of beef I do not know who is going to jail, but I know that a large number of people are bound to go. Whenever the Standard Oil Company raises the price of oil, I know that a certain number of girls who are seamstresses, and who work after night long hours for somebody else, will be compelled to go out on the streets and ply another trade, and I know that Mr. Rockefeller and his associates are responsible and not the poor girls in the jails.

First and last, people are sent to jail because they are poor. Sometimes, as I say, you may not need money at the particular time, but you wish to have thrifty forehanded habits, and do not always wait until you are in absolute want. Some of you people are perhaps plying the trade, the profession, which is called burglary. No man in his right senses will go into a strange house in the dead of night and prowl around with a dark lantern through unfamiliar rooms and take chances of his life if he has plenty of the good things of the world in his own home. You would not take any such chances as that. If a man had clothes in his clothes-press and beefsteak in his pantry, and money in the bank, he would not navigate around nights in houses where he knows nothing about the premises whatever. It always requires experience and education for this profession, and people who fit themselves for it are no more to blame than I am for being a lawyer. A man would not hold up another man on the street if he had plenty of money in his own pocket. He might do it if he had one dollar or two dollars, but he wouldn’t if he had as much money as Mr. Rockefeller has. Mr. Rockefeller has a great deal better hold-up game than that.

The more that is taken from the poor by the rich, who have the chance to take it, the more poor people there are who are compelled to resort to these means for a livelihood. They may not understand it, they may not think so at once, but after all they are driven into that line of employment. There is a bill before the legislature of this State to punish kidnapping of children with death. We have wise members of the legislature. They know the gas trust when they see it and they always see it — they can furnish light enough to be seen, and this legislature thinks it is going to stop kidnapping of children by making a law punishing kidnapers of children with death. I don’t believe in kidnapping children, but the legislature is all wrong. Kidnapping children is not a crime, it is a profession. It has been developed with the times. It has been developed with our modern industrial conditions. There are many ways of making money — many new ways that our ancestors knew nothing about. Our ancestors knew nothing about a billion dollar trust; and here comes some poor fellow who has no other trade and he discovers the profession of kidnapping children.

This crime is born, not because people are bad; people don’t kidnap other people’s children because they want the children or because they are devilish, but because they see a chance to get some money out of it. You cannot cure this crime by passing a law punishing by death kidnapers of children. There is one way to cure it. There is one way to cure all these offenses, and that is to give the people a chance to live. There is no other way, and there never was any other way since the world began, and the world is so blind and stupid that it will not see. If every man and woman and child in the world had a chance to make a decent, fair, honest living, there would be no jails, and no lawyers and no courts. There might be some persons here or there with some peculiar formation of their brain, like Rockefeller, who would do these things simply to be doing them; but they would be very, very few, and those should be sent to a hospital and treated, and not sent to jail, and they would entirely disappear in the second generation, or at least in the third generation.

I am not talking pure theory. I will just give you two or three illustrations. The English people once punished criminals by sending them away. They would load them on a ship and export them to Australia. England was owned by lords and nobles and rich people. They owned the whole earth over there, and the other people had to stay in the streets. They could not get a decent living. They used to take their criminals and send them to Australia — I mean the class of criminals who got caught. When these criminals got over there, and nobody else had come, they had the whole continent to run over, and so they could raise sheep and furnish their own meat, which is easier than stealing it; these criminals then became decent, respectable people because they had a chance to live. They did not commit any crimes. They were just like the English people who sent them there, only better. And in the second generation the descendants of those criminals were as good and respectable a class of people as there were on the face of the earth, and then they began building churches and jails themselves.

A portion of this country was settled in the same way, landing prisoners down on the southern coast; but when they got here and had a whole continent to run over and plenty of chances to make a living, they became respectable citizens, making their own living just like any other citizen in the world; but finally these descendants of the English aristocracy, who sent the people over to Australia, found out they were getting rich, and so they went over to get possession of the earth as they always do, and they organized land syndicates and got control of the land and ores, and then they had just as many criminals in Australia as they did in England. It was not because the world had grown bad; it was because the earth had been taken away from the people.

Some of you people have lived in the country. It’s prettier than it is here. And if you have ever lived on a farm you understand that if you put a lot of cattle in a field, when the pasture is short they will jump over the fence; but put them in a good field where there is plenty of pasture, and they will be law-abiding cattle to the end of time. The human animal is just like the rest of the animals, only a little more so. The same thing that governs in the one governs in the other.

Everybody makes his living along the lines of least resistance. A wise man who comes into a country early sees a great undeveloped land. For instance, our rich men twenty-five years ago saw that Chicago was small and knew a lot of people would come here and settle, and they readily saw that if they had all the land around here it would be worth a good deal, so they grabbed the land. You cannot be a landlord because somebody has got it all. You must find some other calling. In England and Ireland and Scotland less than five percent own all the land there is, and the people are bound to stay there on any kind of terms the landlords give. They must live the best they can, so they develop all these various professions — burglary, picking pockets and the like.

Again, people find all sorts of ways of getting rich. These are diseases like everything else. You look at people getting rich, organizing trusts, and making a million dollars, and somebody gets the disease and he starts out. He catches it just as a man catches the mumps or the measles; he is not to blame, it is in the air. You will find men speculating beyond their means, because the mania of money-getting is taking possession of them. It is simply a disease; nothing more, nothing less. You cannot avoid catching it; but the fellows who have control of the earth have the advantage of you. See what the law is; when these men get control of things, they make the laws. They do not make the laws to protect anybody; courts are not instruments of justice; when your case gets into court it will make little difference whether you are guilty or innocent; but it’s better if you have a smart lawyer. And you cannot have a smart lawyer unless you have money. First and last it’s a question of money. Those men who own the earth make the laws to protect what they have. They fix up a sort of fence or pen around what they have, and they fix the law so the fellow on the outside cannot get in. The laws are really organized for the protection of the men who rule the world. They were never organized or enforced to do justice. We have no system for doing justice, not the slightest in the world.

Let me illustrate: Take the poorest person in this room. If the community had provided a system of doing justice the poorest person in this room would have as good a lawyer as the richest, would he not? When you went into court you would have just as long a trial, and just as fair a trial as the richest person in Chicago. Your case would not be tried in fifteen or twenty minutes, whereas it would take fifteen days to get through with a rich man’s case.

Then if you were rich and were beaten your case would be taken to the Appellate Court. A poor man cannot take his case to the Appellate Court; he has not the price; and then to the Supreme Court, and if he were beaten there he might perhaps go to the United States Supreme Court. And he might die of old age before he got into jail. If you are poor, it’s a quick job. You are almost known to be guilty, else you would not be there. Why should anyone be in the criminal court if he were not guilty? He would not be there if he could be anywhere else. The officials have no time to look after these cases. The people who are on the outside, who are running banks and building churches and making jails, they have no time to examine 600 or 700 prisoners each year to see whether they are guilty or innocent. If the courts were organized to promote justice the people would elect somebody to defend all these criminals, somebody as smart as the prosecutor — and give him as many detectives and as many assistants to help, and pay as much money to defend you as to prosecute you. We have a very able man for State’s Attorney, and he has many assistants, detectives and policemen without end, and judges to hear the cases — everything handy.

Most of our criminal code consists in offenses against property. People are sent to jail because they have committed a crime against property. It is of very little consequence whether one hundred people more or less go to jail who ought not to go — you must protect property, because in this world property is of more importance than anything else. How is it done? These people who have property fix it so they can protect what they have. When somebody commits a crime it does not follow that he has done something that is morally wrong. The man on the outside who has committed no crime may have done something. For instance: to take all the coal in the United States and raise the price two dollars or three dollars when there is no need of it, and thus kills thousands of babies and send thousands of people to the poorhouse and tens of thousands to jail, as is done every year in the United States — this is a greater crime than all the people in our jails ever committed, but the law does not punish it. Why? Because the fellows who control the earth make the laws. If you and I had the making of the laws, the first thing we would do would be to punish the fellow who gets control of the earth. Nature put this coal in the ground for me as well as for them and nature made the prairies up here to raise wheat for me as well as for them, and then the great railroad companies came along and fenced it up.

Most all of the crimes for which we are punished are property crimes. There are a few personal crimes, like murder — but they are very few. The crimes committed are mostly against property. If this punishment is right the criminals must have a lot of property. How much money is there in this crowd? And yet you are all here for crimes against property. The people up and down the Lake Shore have not committed crime, still they have so much property they don’t know what to do with it. It is perfectly plain why these people have not committed crimes against property; they make the laws and therefore do not need to break them. And in order for you to get some property you are obliged to break the rules of the game. I don’t know but what some of you may have had a very nice chance to get rich by carrying the hod for one dollar a day, twelve hours. Instead of taking that nice, easy profession, you are a burglar. If you had been given a chance to be a banker you would rather follow that. Some of you may have had a chance to work as a switchman on a railroad where you know, according to statistics, that you cannot live and keep all your limbs more than seven years, and you get fifty dollars a month for taking your lives in your hands, and instead of taking that lucrative position you choose to be a sneak thief, or something like that. Some of you made that sort of chance. I don’t know which I would take if I was reduced to this choice. I have an easier choice.

I will guarantee to take from this jail, or any jail in the world, five hundred men who have been the worst criminals and law breakers who ever got into jail, and I will go down to our lowest streets and take five hundred of the most hardened prostitutes, and go out somewhere where there is plenty of land, and will give them a chance to make a living, and they will be as good people as the average in the community. There is a remedy for the sort of condition we see here. The world never finds it out, or when it does find it out it does not enforce it. You may pass a law punishing every person with death for burglary, and it will make no difference. Men will commit it just the same. In England there was a time when one hundred different offenses were punishable with death, and it made no difference. The English people strangely found out that so fast as they repealed the severe penalties and so fast as they did away with punishing men by death, crime decreased instead of increased; that the smaller the penalty the fewer the crimes.

Hanging men in our county jails does not prevent murder. It makes murderers. And this has been the history of the world. It’s easy to see how to do away with what we call crime. It is not so easy to do it. I will tell you how to do it. It can be done by giving the people a chance to live — by destroying special privileges. So long as big criminals can get the coal fields, so long as the big criminals have control of the city council and get the public streets for street cars and gas rights, this is bound to send thousands of poor people to jail. So long as men are allowed to monopolize all the earth, and compel others to live on such terms as these men see fit to make, then you are bound to get into jail.

The only way in the world to abolish crime and criminals is to abolish the big ones and the little ones together. Make fair conditions of life. Give men a chance to live. Abolish the right of private ownership of land, abolish monopoly, make the world partners in production, partners in the good things of life. Nobody would steal if he could get something of his own some easier way. Nobody will commit burglary when he has a house full. No girl will go out on the streets when she has a comfortable place at home. The man who owns a sweatshop or a department store may not be to blame himself for the condition of his girls, but when he pays them five dollars, three dollars, and two dollars a week, I wonder where he thinks they will get the rest of their money to live. The only way to cure these conditions is by equality. There should be no jails. They do not accomplish what they pretend to accomplish. If you would wipe them out, there would be no more criminals than now. They terrorize nobody. They are a blot upon civilization, and a jail is an evidence of the lack of charity of the people on the outside who make the jails and fill them with the victims of their greed.
—————————————————————————- —-
Clarence Darrow (1857-1938) is most well known for his role in the Scopes and Leopold-Loeb trials, but he also defended Eugene Debs, Big Bill Haywood and many other labor, antiwar and civil rights cases. More extensive discussion of his views on crime and punishment can be found in his books Resist Not Evil (1903) and Crime: Its Cause and Treatment (1922).

* * *

To read a sample or related Situationist posts, see “The Situation of False Confessions,” “The Legal Situation of the Underclass,” “The Situation of Criminality – Abstract,” “A Situationist View of Criminal Prosecutors,” “Jennifer Eberhardt’s “Policing Racial Bias” – Video,” “The Justice Department, Milgram, & Torture,” “Why Torture? Because It Feels Good (at least to “Us”),” “The Situation of Solitary Confinement,” “The Situation of Punishment (and Forgiveness),” “The Situation of Punishment,” “Why We Punish,” and “The Situation of Death Row.”

Our Stake in Corporate Behavior

Situationist Contributor David Yosifon published a thoughtful and timely op-ed,  in yesterday’s San Francisco Chronicle. Here are some excerpts.

* * *

Corporations are crucial institutions in our society. Consumers rely on them for everything from the basic provisions of food and clothing to the more dispensable delights of computers and cell phones. Workers rely on them for jobs. Communities need them for a tax base. Shareholders rely on them for profits that fund retirement, or entrepreneurial activity.

We all have a stake in effective corporate operations. Yet corporate directors are not required, indeed are not allowed, to put the interests of any party above shareholders in their decision making.

Now the Supreme Court has declared that the First Amendment forbids us from restricting corporate spending on political campaigns. If we cannot restrain corporations from influencing our democracy, then we must have more democracy in the management of our corporations. Directors of publicly traded corporations should be required to become informed about and to deliberate on the interests of all corporate stakeholders, not just shareholders.

The idea that we all have a stake in corporate behavior might seem at odds with the current “shareholder primacy” rule in corporate governance. But it could make sense. Most shareholders are highly diversified, with small investments in a large number of funds or corporations spread across the country and the world. The profit-maximization rule provides shareholders sufficient repose to invest their money at such a distance and with so little say in corporate decisions. Workers, on the other hand, can negotiate and monitor their wages and working conditions directly, or through unions. Consumers can manage their corporate interests at the cash register – they can buy at the offered price or walk away.

But corporations are often more powerful than workers or consumers. Firms can skimp on safety, for example, in ways that are difficult to observe – think asbestos in the factory or trans fats in the fries. Sure, sometimes the socially responsible corporate policy is also the most profitable – as when safer products attract more consumers. But it is naive to think that shareholder interests are always aligned with the rest of society. For a long time policymakers have argued that even where society is vulnerable to corporate overreaching, corporate boards should still focus on shareholder interests. We should rely, the story goes, on external government regulation – such as workplace safety, consumer protection or antipollution statutes – to safeguard social interests.

This approach assumes that government will be capable of developing regulations sufficient to constrain corporate misconduct. But corporations have the incentive and power to stunt such efforts. Firms accomplish this in part through lobbying, donations and direct spending in support of candidates. Because of their wealth, corporations can routinely best other constituencies in the competition for regulatory favor. This problem will only intensify with the new Supreme Court ruling.

* * *

You can read the op-ed in its entirety here.

For a sample of related Situationist posts, see “Taking the Situation of Consumers Seriously,” “Against Freedom of Commercial Expression – Abstract,” “Merchants of Discontent – Abstract,” “The Changing Face of Marketing?,” “Reclaiming Corporate Law in a New Gilded Age – Abstract,” “The Situation of Illusion,” “Hey Dove! Talk to YOUR parent!,” “The Situation of Our Food – Part II,” “The Situation of Our Food – Part III,” “The Changing Face of Marketing?,” “The Illusion of Wall Street Reform,” “Reclaiming Corporate Law in a New Gilded Age – Abstract,” “Deep Capture – Part VI,” and “Deep Capture – Part VII.”

Taking the Situation of Consumers Seriously

Situationist Contributor David Yosifon recently posted his superb article, “The Consumer Interest in Corporate Law,” (43 UC Davis Law Review 253-313 (2009)) on SSRN.  It’s an important, well written, and very situationist analysis of the influence of corporate law and corporations on consumers. Here’s the abstract.

* * *

This Article provides a comprehensive assessment of the consumer interest in dominant theories of the corporation and in the fundamental doctrines of corporate law. In so doing, the Article fills a void in contemporary corporate law scholarship, which has failed to give sustained attention to consumers in favor of exploring the interests of other corporate stakeholders, especially shareholders, creditors, and workers. Utilizing insights derived from the law and behavioralism movement, this Article examines, in particular, the limitations of the shareholder primacy norm at the heart of prevailing “nexus of contracts” and “team production” theories of the firm. The Article concludes that fundamental reforms in corporate governance may be needed in order to vindicate the consumer interest in corporate enterprise.

* * *

You can download the paper for free here.  For a sample of related Situationist posts, see “Hey Dove! Talk to YOUR parent!,” “The Situation of Our Food – Part II,” “The Situation of Our Food – Part III,” “The Changing Face of Marketing?,” “The Illusion of Wall Street Reform,” “Reclaiming Corporate Law in a New Gilded Age – Abstract,” “Deep Capture – Part VI,” and “Deep Capture – Part VII.”

(The illustration above is by Situationist artist Marc Scheff.)

Robert Reich on the Situation of Health Care Reform

From Bill Moyers’ Journal:  “Former Labor Secretary Robert Reich sits down with Bill Moyers to talk about the influence of lobbyists on policy, the economy, and the ongoing debate over health care.”  See the interview on the video below.  From the interview, here is a bit of what Reich had to say about trends in wealth distribution.

* * *

“The fact of the matter is that, as late as 1980, the top 1 percent by income in the United States had about nine percent of total national income. But since then, you’ve had increasing concentration of income and wealth to the point that by 2007 the top 1 percent was taking home 21 percent of total national income. Now, when they’re taking home that much, the middle class doesn’t have enough purchasing power to keep the economy growing. That was hidden by the fact that they were borrowing so much on their homes, they kept on consuming because of their borrowing. But once that housing bubble exploded, it exposed the fact that the middle class in this country has really not participated in the growth of the economy, and over the long term we’re not gonna have a recovery until the middle class has the purchasing power it needs to buy again.”

* * *

Vodpod videos no longer available.
* * *

To read a sample of related Situationist posts, see “The Situation of Policy Research and Policy Outcomes,” “Larry Lessig’s Situationism,” “Without the Filter,” “The Situation of University Research,” “The company “had no control or influence over the research” . . . .,” ” Deep Capture – Part VII,” “Industry-Funded Research,” and “Industry-Funded Research – Part II.”

The Situation of Policy Research and Policy Outcomes

Yesterday, Adam Liptak published a nice article , “From One Footnote, a Debate Over the Tangles of Law, Science and Money,” in the New York Times.  In it he explores the dubious role of Exxon on the legal scholarship regarding punitive damages.

* * *

Two years after Exxon was hit with a $5 billion punitive damages award for the Exxon Valdez disaster, Prof. William R. Freudenburg’s phone rang. The call propelled him, the professor said the other day, into “an ethical quagmire of the bottomless pit variety.”

The caller was an Exxon engineer who wanted to pay the professor to conduct a study taking a dim view of punitive damages. The Exxon Valdez case would eventually reach the Supreme Court, the engineer said, and the study would be useful in convincing the court that punitive damages make little sense, especially if it was published in a prestigious academic journal.

Professor Freudenburg, who now teaches sociology at the University of California, Santa Barbara, took Exxon’s money and conducted preliminary research. Exxon stopped supporting the study when the early findings did not point in a direction helpful to the company. But Exxon did help pay for several studies critical of punitive damages that appeared in places like The Yale Law Journal and The Columbia Law Review.

As the engineer predicted, the case did reach the Supreme Court. In a 5-to-3 decision in June, the court said the appropriate punishment for dumping 11 million gallons of crude oil into Prince William Sound in Alaska in 1989 was no more than about $500 million, a tenth of what the jury had awarded.

But the court also addressed the aggressive effort to reshape the academic debate over punitive damages. “Because this research was funded in part by Exxon,” Justice David H. Souter wrote in a footnote that has rocked the legal academy, “we decline to rely on it.”

* * *

Science and the law have always had a tricky relationship, but it gets especially tangled in the appeals courts.

Whatever may be said about questionable scientific evidence submitted at trial, often accompanied by dueling expert witnesses, it is at least subject to the scrutiny of the adversary system, including cross-examination. Studies merely cited in footnotes to appellate briefs may represent the worst of both worlds — suspect science and untested evidence — which helps explain why Justice Souter was skeptical of them. But focusing on financing rather than quality is only a partial solution.

People who conduct empirical legal research say their work should be considered on the merits. Others accuse Justice Souter of being disingenuous, noting that the court largely adopted the approach advocated by the Exxon studies, disclaimer or no. Still others say the court mishandled the studies it cited with approval.

But Terry N. Gardner, the engineer who called Professor Freudenburg and coordinated the Exxon project, expressed satisfaction. “My feeling was that they seemed to have an obligation to say that,” Mr. Gardner said of the footnote. “Yet the arguments the justices used in part reflected the conclusions of the studies.”

* * *

“The opinion reads like a bad joke,” said Jeffrey J. Rachlinski, a law professor at Cornell. “They say they know of no study showing punitive damages are orderly in any way, and yet they cite” a study by Theodore Eisenberg, a prominent empirical legal studies scholar at Cornell, “showing punitive damages are pretty orderly.”

Professor Eisenberg struggled to stay respectful about the court’s approach to his work, saying he had been flattered to be cited at all. He finally settled on this phrase: “I believe the court went seriously astray” in concluding that his work supported a reduced award.

* * *

Before Exxon cut off his financing, Professor Freudenburg said, one of his tentative conclusions had been that corporate transparency encourages responsible corporate behavior. That did not go over well with Exxon’s legal department.

* * *

The Supreme Court’s decision in the Exxon case, Professor Freudenburg said, had caused him to come to a reluctant conclusion. “The legal system and the scientific method,” he said, “co-exist in a way that is really hard on truth.”

* * *

To read the entire article, click here.  For other Situationist posts examining the influence of corporations on science and policy theory, see “Without the Filter,” “The Situation of University Research,” “The company “had no control or influence over the research” . . . .,” ” Deep Capture – Part VII,” “Industry-Funded Research,” and “Industry-Funded Research – Part II.”

Clarence Darrow on the Situation of Crime and Criminals

“Crime and Criminals: Address to the Prisoners in the Chicago Jail” (1902)

Preface

This address is a stenographic report of a talk made to the prisoners in the Chicago jail. Some of my good friends have insisted that while my theories are true, I should not have given them to the inmates of a jail.

Realizing the force of the suggestion that the truth should not be spoken to all people, I have caused these remarks to be printed on rather good paper and in a somewhat expensive form. In this way the truth does not become cheap and vulgar, and is only placed before those whose intelligence and affluence will prevent their being influenced by it.
—Clarence Darrow

Crime and Criminals

If I looked at jails and crimes and prisoners in the way the ordinary person does, I should not speak on this subject to you. The reason I talk to you on the question of crime, its cause and cure, is because I really do not in the least believe in crime. There is no such thing as a crime as the word is generally understood. I do not believe there is any sort of distinction between the real moral condition of the people in and out of jail. One is just as good as the other. The people here can no more help being here than the people outside can avoid being outside. I do not believe that people are in jail because they deserve to be. They are in jail simply because they cannot avoid it on account of circumstances which are entirely beyond their control and for which they are in no way responsible.

I suppose a great many people on the outside would say I was doing you harm if they should hear what I say to you this afternoon, but you cannot be hurt a great deal anyway, so it will not matter. Good people outside would say that I was really teaching you things that were calculated to injure society, but it’s worth while now and then to hear something different from what you ordinarily get from preachers and the like. These will tell you that you should be good and then you will get rich and be happy. Of course we know that people do not get rich by being good, and that is the reason why so many of you people try to get rich some other way, only you do not understand how to do it quite as well as the fellow outside.

There are people who think that everything in this world is an accident. But really there is no such thing as an accident. A great many folks admit that many of the people in jail ought not to be there, and many who are outside ought to be in. I think none of them ought to be here. There ought to be no jails, and if it were not for the fact that the people on the outside are so grasping and heartless in their dealings with the people on the inside, there would be no such institution as jails.

I do not want you to believe that I think all you people here are angels. I do not think that. You are people of all kinds, all of you doing the best you can, and that is evidently not very well — you are people of all kinds and conditions and under all circumstances. In one sense everybody is equally good and equally bad. We all do the best we can under the circumstances. But as to the exact things for which you are sent here, some of you are guilty and did the particular act because you needed the money. Some of you did it because you are in the habit of doing it, and some of you because you are born to it, and it comes to be as natural as it does, for instance, for me to be good.

Most of you probably have nothing against me, and most of you would treat me the same as any other person would; probably better than some of the people on the outside would treat me, because you think I believe in you and they know I do not believe in them. While you would not have the least thing against me in the world you might pick my pockets. I do not think all of you would, but I think some of you would. You would not have anything against me, but that’s your profession, a few of you. Some of the rest of you, if my doors were unlocked, might come in if you saw anything you wanted — not out of malice to me, but because that is your trade. There is no doubt there are quite a number of people in this jail who would pick my pockets. And still I know this, that when I get outside pretty nearly everybody picks my pocket. There may be some of you who would hold up a man on the street, if you did not happen to have something else to do, and needed the money; but when I want to light my house or my office the gas company holds me up. They charge me one dollar for something that is worth twenty-five cents, and still all these people are good people; they are pillars of society and support the churches, and they are respectable.

When I ride on the street cars, I am held up — I pay five cents for a ride that is worth two and a half cents, simply because a body of men have bribed the city council and the legislature, so that all the rest of us have to pay tribute to them. If I do not wish to fall into the clutches of the gas trust and choose to burn oil instead of gas, then good Mr. Rockefeller holds me up, and he uses a certain portion of his money to build universities and support churches which are engaged in telling us how to be good. Some of you are here for obtaining property under false pretenses — yet I pick up a great Sunday paper and read the advertisements of a merchant prince — “Shirt waists for 39 cents, marked down from $3.00.”

When I read the advertisements in the paper I see they are all lies. When I want to get out and find a place to stand anywhere on the face of the earth, I find that it has all been taken up long ago before I came here, and before you came here, and somebody says, “Get off, swim into the lake, fly into the air; go anywhere, but get off.” That is because these people have the police and they have the jails and judges and the lawyers and the soldiers and all the rest of them to take care of the earth and drive everybody off that comes in their way. A great many people will tell you that all this is true, but that it does not excuse you. These facts do not excuse some fellow who reaches into my pocket and takes out a five dollar bill; the fact that the gas company bribes the members of the legislature from year to year, and fixes the law, so that all you people are compelled to be “fleeced” whenever you deal with them; the fact that the street car companies and the gas companies have control of the streets and the fact that the landlords own all the earth, they say, has nothing to do with you.

Let us see whether there is any connection between the crimes of the respectable classes and your presence in the jail. Many of you people are in jail because you have really committed burglary. Many of you, because you have stolen something; in the meaning of the law, you have taken some other person’s property. Some of you have entered a store and carried off a pair of shoes because you did not have the price. Possibly some of you have committed murder. I cannot tell what all of you did. There are a great many people here who have done some of these things who really do not know themselves why they did them. I think I know why you did them — every one of you; you did these things because you were bound to do them. It looked to you at the time as if you had a chance to do them or not, as you saw fit, but still after all you had no choice. There may be people here who had some money in their pockets and who still went out and got some more money in a way society forbids. Now you may not yourselves see exactly why it was you did this thing, but if you look at the question deeply enough and carefully enough you would see that there were circumstances that drove you to do exactly the thing which you did. You could not help it any more than we outside can help taking the positions that we take. The reformers who tell you to be good and you will be happy, and the people on the outside who have property to protect — they think that the only way to do it is by building jails and locking you up in cells on week days and praying for you Sundays.

I think that all of this has nothing whatever to do with right conduct. I think it is very easily seen what has to do with right conduct. Some so-called criminals — and I will use this word because it is handy, it means nothing to me — I speak of the criminals who get caught as distinguished from the criminals who catch them — some of these so-called criminals are in jail for the first offenses, but nine-tenths of you are in jail because you did not have a good lawyer and of course you did not have a good lawyer because you did not have enough money to pay a good lawyer. There is no very great danger of a rich man going to jail. Some of you may be here for the first time. If we would open the doors and let you out, and leave the laws as they are today, some of you would be back tomorrow. This is about as good a place as you can get anyway. There are many people here who are so in the habit of coming that they would not know where else to go. There are people who are born with the tendency to break into jail every chance they get, and they cannot avoid it. You cannot figure out your life and see why it was, but still there is a reason for it, and if we were all wise and knew all the facts we could figure it out.

In the first place, there are a good many more people who go to jail in the winter time than in summer. Why is this? Is it because people are more wicked in winter? No, it is because the coal trust begins to get in its grip in the winter. A few gentlemen take possession of the coal, and unless the people will pay $7 or $8 a ton for something that is worth $3, they will have to freeze. Then there is nothing to do but break into jail, and so there are many more in jail in the winter than in summer. It costs more for gas in the winter because the nights are longer, and people go to jail to save gas bills. The jails are electric lighted. You may not know it, but these economic laws are working all the time, whether we know it or do not know it.

There are more people go to jail in hard times than in good times — few people comparatively go to jail except when they are hard up. They go to jail because they have no other place to go. They may not know why, but it is true all the same. People are not more wicked in hard times. That is not the reason. The fact is true all over the world that in hard times more people go to jail than in good times, and in winter more people go to jail than in summer. Of course it is pretty hard times for people who go to jail at any time. The people who go to jail are almost always poor people — people who have no other place to live first and last. When times are hard then you find large numbers of people who go to jail who would not otherwise be in jail.

Long ago Mr. Buckle, who was a great philosopher and historian, collected facts and he showed that the number of people who are arrested increased just as the price of food increased. When they put up the price of gas ten cents a thousand I do not know who will go to jail, but I do know that a certain number of people will go. When the meat combine raises the price of beef I do not know who is going to jail, but I know that a large number of people are bound to go. Whenever the Standard Oil Company raises the price of oil, I know that a certain number of girls who are seamstresses, and who work after night long hours for somebody else, will be compelled to go out on the streets and ply another trade, and I know that Mr. Rockefeller and his associates are responsible and not the poor girls in the jails.

First and last, people are sent to jail because they are poor. Sometimes, as I say, you may not need money at the particular time, but you wish to have thrifty forehanded habits, and do not always wait until you are in absolute want. Some of you people are perhaps plying the trade, the profession, which is called burglary. No man in his right senses will go into a strange house in the dead of night and prowl around with a dark lantern through unfamiliar rooms and take chances of his life if he has plenty of the good things of the world in his own home. You would not take any such chances as that. If a man had clothes in his clothes-press and beefsteak in his pantry, and money in the bank, he would not navigate around nights in houses where he knows nothing about the premises whatever. It always requires experience and education for this profession, and people who fit themselves for it are no more to blame than I am for being a lawyer. A man would not hold up another man on the street if he had plenty of money in his own pocket. He might do it if he had one dollar or two dollars, but he wouldn’t if he had as much money as Mr. Rockefeller has. Mr. Rockefeller has a great deal better hold-up game than that.

The more that is taken from the poor by the rich, who have the chance to take it, the more poor people there are who are compelled to resort to these means for a livelihood. They may not understand it, they may not think so at once, but after all they are driven into that line of employment. There is a bill before the legislature of this State to punish kidnapping of children with death. We have wise members of the legislature. They know the gas trust when they see it and they always see it — they can furnish light enough to be seen, and this legislature thinks it is going to stop kidnapping of children by making a law punishing kidnapers of children with death. I don’t believe in kidnapping children, but the legislature is all wrong. Kidnapping children is not a crime, it is a profession. It has been developed with the times. It has been developed with our modern industrial conditions. There are many ways of making money — many new ways that our ancestors knew nothing about. Our ancestors knew nothing about a billion dollar trust; and here comes some poor fellow who has no other trade and he discovers the profession of kidnapping children.

This crime is born, not because people are bad; people don’t kidnap other people’s children because they want the children or because they are devilish, but because they see a chance to get some money out of it. You cannot cure this crime by passing a law punishing by death kidnapers of children. There is one way to cure it. There is one way to cure all these offenses, and that is to give the people a chance to live. There is no other way, and there never was any other way since the world began, and the world is so blind and stupid that it will not see. If every man and woman and child in the world had a chance to make a decent, fair, honest living, there would be no jails, and no lawyers and no courts. There might be some persons here or there with some peculiar formation of their brain, like Rockefeller, who would do these things simply to be doing them; but they would be very, very few, and those should be sent to a hospital and treated, and not sent to jail, and they would entirely disappear in the second generation, or at least in the third generation.

I am not talking pure theory. I will just give you two or three illustrations. The English people once punished criminals by sending them away. They would load them on a ship and export them to Australia. England was owned by lords and nobles and rich people. They owned the whole earth over there, and the other people had to stay in the streets. They could not get a decent living. They used to take their criminals and send them to Australia — I mean the class of criminals who got caught. When these criminals got over there, and nobody else had come, they had the whole continent to run over, and so they could raise sheep and furnish their own meat, which is easier than stealing it; these criminals then became decent, respectable people because they had a chance to live. They did not commit any crimes. They were just like the English people who sent them there, only better. And in the second generation the descendants of those criminals were as good and respectable a class of people as there were on the face of the earth, and then they began building churches and jails themselves.

A portion of this country was settled in the same way, landing prisoners down on the southern coast; but when they got here and had a whole continent to run over and plenty of chances to make a living, they became respectable citizens, making their own living just like any other citizen in the world; but finally these descendants of the English aristocracy, who sent the people over to Australia, found out they were getting rich, and so they went over to get possession of the earth as they always do, and they organized land syndicates and got control of the land and ores, and then they had just as many criminals in Australia as they did in England. It was not because the world had grown bad; it was because the earth had been taken away from the people.

Some of you people have lived in the country. It’s prettier than it is here. And if you have ever lived on a farm you understand that if you put a lot of cattle in a field, when the pasture is short they will jump over the fence; but put them in a good field where there is plenty of pasture, and they will be law-abiding cattle to the end of time. The human animal is just like the rest of the animals, only a little more so. The same thing that governs in the one governs in the other.

Everybody makes his living along the lines of least resistance. A wise man who comes into a country early sees a great undeveloped land. For instance, our rich men twenty-five years ago saw that Chicago was small and knew a lot of people would come here and settle, and they readily saw that if they had all the land around here it would be worth a good deal, so they grabbed the land. You cannot be a landlord because somebody has got it all. You must find some other calling. In England and Ireland and Scotland less than five percent own all the land there is, and the people are bound to stay there on any kind of terms the landlords give. They must live the best they can, so they develop all these various professions — burglary, picking pockets and the like.

Again, people find all sorts of ways of getting rich. These are diseases like everything else. You look at people getting rich, organizing trusts, and making a million dollars, and somebody gets the disease and he starts out. He catches it just as a man catches the mumps or the measles; he is not to blame, it is in the air. You will find men speculating beyond their means, because the mania of money-getting is taking possession of them. It is simply a disease; nothing more, nothing less. You cannot avoid catching it; but the fellows who have control of the earth have the advantage of you. See what the law is; when these men get control of things, they make the laws. They do not make the laws to protect anybody; courts are not instruments of justice; when your case gets into court it will make little difference whether you are guilty or innocent; but it’s better if you have a smart lawyer. And you cannot have a smart lawyer unless you have money. First and last it’s a question of money. Those men who own the earth make the laws to protect what they have. They fix up a sort of fence or pen around what they have, and they fix the law so the fellow on the outside cannot get in. The laws are really organized for the protection of the men who rule the world. They were never organized or enforced to do justice. We have no system for doing justice, not the slightest in the world.

Let me illustrate: Take the poorest person in this room. If the community had provided a system of doing justice the poorest person in this room would have as good a lawyer as the richest, would he not? When you went into court you would have just as long a trial, and just as fair a trial as the richest person in Chicago. Your case would not be tried in fifteen or twenty minutes, whereas it would take fifteen days to get through with a rich man’s case.

Then if you were rich and were beaten your case would be taken to the Appellate Court. A poor man cannot take his case to the Appellate Court; he has not the price; and then to the Supreme Court, and if he were beaten there he might perhaps go to the United States Supreme Court. And he might die of old age before he got into jail. If you are poor, it’s a quick job. You are almost known to be guilty, else you would not be there. Why should anyone be in the criminal court if he were not guilty? He would not be there if he could be anywhere else. The officials have no time to look after these cases. The people who are on the outside, who are running banks and building churches and making jails, they have no time to examine 600 or 700 prisoners each year to see whether they are guilty or innocent. If the courts were organized to promote justice the people would elect somebody to defend all these criminals, somebody as smart as the prosecutor — and give him as many detectives and as many assistants to help, and pay as much money to defend you as to prosecute you. We have a very able man for State’s Attorney, and he has many assistants, detectives and policemen without end, and judges to hear the cases — everything handy.

Most of our criminal code consists in offenses against property. People are sent to jail because they have committed a crime against property. It is of very little consequence whether one hundred people more or less go to jail who ought not to go — you must protect property, because in this world property is of more importance than anything else. How is it done? These people who have property fix it so they can protect what they have. When somebody commits a crime it does not follow that he has done something that is morally wrong. The man on the outside who has committed no crime may have done something. For instance: to take all the coal in the United States and raise the price two dollars or three dollars when there is no need of it, and thus kills thousands of babies and send thousands of people to the poorhouse and tens of thousands to jail, as is done every year in the United States — this is a greater crime than all the people in our jails ever committed, but the law does not punish it. Why? Because the fellows who control the earth make the laws. If you and I had the making of the laws, the first thing we would do would be to punish the fellow who gets control of the earth. Nature put this coal in the ground for me as well as for them and nature made the prairies up here to raise wheat for me as well as for them, and then the great railroad companies came along and fenced it up.

Most all of the crimes for which we are punished are property crimes. There are a few personal crimes, like murder — but they are very few. The crimes committed are mostly against property. If this punishment is right the criminals must have a lot of property. How much money is there in this crowd? And yet you are all here for crimes against property. The people up and down the Lake Shore have not committed crime, still they have so much property they don’t know what to do with it. It is perfectly plain why these people have not committed crimes against property; they make the laws and therefore do not need to break them. And in order for you to get some property you are obliged to break the rules of the game. I don’t know but what some of you may have had a very nice chance to get rich by carrying the hod for one dollar a day, twelve hours. Instead of taking that nice, easy profession, you are a burglar. If you had been given a chance to be a banker you would rather follow that. Some of you may have had a chance to work as a switchman on a railroad where you know, according to statistics, that you cannot live and keep all your limbs more than seven years, and you get fifty dollars a month for taking your lives in your hands, and instead of taking that lucrative position you choose to be a sneak thief, or something like that. Some of you made that sort of chance. I don’t know which I would take if I was reduced to this choice. I have an easier choice.

I will guarantee to take from this jail, or any jail in the world, five hundred men who have been the worst criminals and law breakers who ever got into jail, and I will go down to our lowest streets and take five hundred of the most hardened prostitutes, and go out somewhere where there is plenty of land, and will give them a chance to make a living, and they will be as good people as the average in the community. There is a remedy for the sort of condition we see here. The world never finds it out, or when it does find it out it does not enforce it. You may pass a law punishing every person with death for burglary, and it will make no difference. Men will commit it just the same. In England there was a time when one hundred different offenses were punishable with death, and it made no difference. The English people strangely found out that so fast as they repealed the severe penalties and so fast as they did away with punishing men by death, crime decreased instead of increased; that the smaller the penalty the fewer the crimes.

Hanging men in our county jails does not prevent murder. It makes murderers. And this has been the history of the world. It’s easy to see how to do away with what we call crime. It is not so easy to do it. I will tell you how to do it. It can be done by giving the people a chance to live — by destroying special privileges. So long as big criminals can get the coal fields, so long as the big criminals have control of the city council and get the public streets for street cars and gas rights, this is bound to send thousands of poor people to jail. So long as men are allowed to monopolize all the earth, and compel others to live on such terms as these men see fit to make, then you are bound to get into jail.

The only way in the world to abolish crime and criminals is to abolish the big ones and the little ones together. Make fair conditions of life. Give men a chance to live. Abolish the right of private ownership of land, abolish monopoly, make the world partners in production, partners in the good things of life. Nobody would steal if he could get something of his own some easier way. Nobody will commit burglary when he has a house full. No girl will go out on the streets when she has a comfortable place at home. The man who owns a sweatshop or a department store may not be to blame himself for the condition of his girls, but when he pays them five dollars, three dollars, and two dollars a week, I wonder where he thinks they will get the rest of their money to live. The only way to cure these conditions is by equality. There should be no jails. They do not accomplish what they pretend to accomplish. If you would wipe them out, there would be no more criminals than now. They terrorize nobody. They are a blot upon civilization, and a jail is an evidence of the lack of charity of the people on the outside who make the jails and fill them with the victims of their greed.
—————————————————————————- —-
Clarence Darrow (1857-1938) is most well known for his role in the Scopes and Leopold-Loeb trials, but he also defended Eugene Debs, Big Bill Haywood and many other labor, antiwar and civil rights cases. More extensive discussion of his views on crime and punishment can be found in his books Resist Not Evil (1903) and Crime: Its Cause and Treatment (1922).

Categorically Biased – Abstract

Ron Chen and Situationist contributor Jon Hanson recently posted their article, “Categorically Biased: The Influence of Knowledge Structures on Law and Legal Theory” (77 S. Calif. L. Rev. 1103) on SSRN. Here’s the abstract.

* * *

This Article focuses primarily on one slice of social psychology and social cognition research, namely the vast and vibrant field examining the integral role that knowledge structures play in the way we attend to, remember, and draw inferences about information we encounter and, more generally, the way we make sense of our world.

The human system of processing information is, in many cases, an efficient means of understanding our worlds and ourselves. Classification of people, objects, and other stimuli is often both indispensable and ineluctable. Still, as social psychologists have demonstrated, “virtually any of the properties of schematic functioning that are useful under some circumstances will be liabilities under others.” The categories and schemas that operate, usually automatically, influence all aspects of information processing – from what information we focus on, to how we encode that information, to which features of that information we later retrieve and remember, and to how we draw inferences and solve problems based on that information. Given the unconscious and biasing influence of our schemas, combined with the fact that our schemas themselves will often reflect our unconscious motives, we should be mindful, even distrustful, of our schemas and the conclusions that they generate. These effects, the processes that drive them, and the biases they engender are the primary subject of this Article. A central goal is to offer a broad understanding of how individuals utilize categories, schemas, and scripts to help make sense of their worlds. In doing so, we serve another main objective: to provide a comprehensive (yet manageable) synthesis of a vast body of social psychology literature. This overview shold transform how we make sense of our laws and legal-theoretic world.

Part II of this Article is devoted to describing the significance of knowledge structures. Part III briefly summarizes how legal scholars have thus far applied insights about knowledge structures and argues that their most profound implications have yet to be appreciated. Part III then provides a set of predictions regarding the influence of knowledge structures and the biases they likely engender for legal theories and laws.

* * *

To download a copy of the paper for free, click here.

The Situation of Medical Research

Gardiner Harris and Benedict Carey wrote an article in last week’s New York Times includes, titled “Researchers Fail to Reveal Full Drug Pay.“ In it , they describe yet another instance of industry influence over what research and manipulation of the marketplace of ideas. We’ve included a few excerpts from the story below.

* * *

A world-renowned Harvard child psychiatrist whose work has helped fuel an explosion in the use of powerful antipsychotic medicines in children earned at least $1.6 million in consulting fees from drug makers from 2000 to 2007 but for years did not report much of this income to university officials, according to information given Congressional investigators.

By failing to report income, the psychiatrist, Dr. Joseph Biederman, and a colleague in the psychiatry department at Harvard Medical School, Dr. Timothy E. Wilens, may have violated federal and university research rules designed to police potential conflicts of interest, according to Senator Charles E. Grassley, Republican of Iowa. Some of their research is financed by government grants.

Like Dr. Biederman, Dr. Wilens belatedly reported earning at least $1.6 million from 2000 to 2007, and another Harvard colleague, Dr. Thomas Spencer, reported earning at least $1 million after being pressed by Mr. Grassley’s investigators. But even these amended disclosures may understate the researchers’ outside income because some entries contradict payment information from drug makers, Mr. Grassley found.

In one example, Dr. Biederman reported no income from Johnson & Johnson for 2001 in a disclosure report filed with the university. When asked to check again, he said he received $3,500. But Johnson & Johnson told Mr. Grassley that it paid him $58,169 in 2001 . . . .

The Harvard group’s consulting arrangements with drug makers were already controversial because of the researchers’ advocacy of unapproved uses of psychiatric medicines in children.

In an e-mailed statement, Dr. Biederman said, “My interests are solely in the advancement of medical treatment through rigorous and objective study,” and he said he took conflict-of-interest policies “very seriously.” Drs. Wilens and Spencer said in e-mailed statements that they thought they had complied with conflict-of-interest rules.

John Burklow, a spokesman for the National Institutes of Health, said: “If there have been violations of N.I.H. policy — and if research integrity has been compromised — we will take all the appropriate action within our power to hold those responsible accountable. This would be completely unacceptable behavior, and N.I.H. will not tolerate it.”

* * *

Alyssa Kneller, a Harvard spokeswoman, said in an e-mailed statement: “The information released by Senator Grassley suggests that, in certain instances, each doctor may have failed to disclose outside income from pharmaceutical companies and other entities that should have been disclosed.”

* * *

Dr. Biederman is one of the most influential researchers in child psychiatry and is widely admired for focusing the field’s attention on its most troubled young patients. Although many of his studies are small and often financed by drug makers, his work helped to fuel a controversial 40-fold increase from 1994 to 2003 in the diagnosis of pediatric bipolar disorder, which is characterized by severe mood swings, and a rapid rise in the use of antipsychotic medicines in children. The Grassley investigation did not address research quality.

Doctors have known for years that antipsychotic drugs, sometimes called major tranquilizers, can quickly subdue children. But youngsters appear to be especially susceptible to the weight gain and metabolic problems caused by the drugs, and it is far from clear that the medications improve children’s lives over time, experts say.

In the last 25 years, drug and device makers have displaced the federal government as the primary source of research financing, and industry support is vital to many university research programs. But as corporate research executives recruit the brightest scientists, their brethren in marketing departments have discovered that some of these same scientists can be terrific pitchmen.

To protect research integrity, the National Institutes of Health require researchers to report to universities earnings of $10,000 or more per year, for instance, in consulting money from makers of drugs also studied by the researchers in federally financed trials. Universities manage financial conflicts by requiring that the money be disclosed to research subjects, among other measures.

* * *

Universities ask professors to report their conflicts but do almost nothing to verify the accuracy of these voluntary disclosures.

“It’s really been an honor system thing,” said Dr. Robert Alpern, dean of Yale School of Medicine. “If somebody tells us that a pharmaceutical company pays them $80,000 a year, I don’t even know how to check on that.”

* * *

In the past decade, Dr. Biederman and his colleagues have promoted the aggressive diagnosis and drug treatment of childhood bipolar disorder, a mood problem once thought confined to adults. They have maintained that the disorder was underdiagnosed in children and could be treated with antipsychotic drugs, medications invented to treat schizophrenia.

Other researchers have made similar assertions. As a result, pediatric bipolar diagnoses and antipsychotic drug use in children have soared. Some 500,000 children and teenagers were given at least one prescription for an antipsychotic in 2007, including 20,500 under 6 years of age, according to Medco Health Solutions, a pharmacy benefit manager.

Few psychiatrists today doubt that bipolar disorder can strike in the early teenage years, or that many of the children being given the diagnosis are deeply distressed.

“I consider Dr. Biederman a true visionary in recognizing this illness in children,” said Susan Resko, director of the Child and Adolescent Bipolar Foundation, “and he’s not only saved many lives but restored hope to thousands of families across the country.”

Longtime critics of the group see its influence differently. “They have given the Harvard imprimatur to this commercial experimentation on children,” said Vera Sharav, president and founder of the Alliance for Human Research Protection, a patient advocacy group.

* * *

Controlling for bias is especially important in such work, given that the scale is subjective, and raters often depend on reports from parents and children, several top psychiatrists said.

* * *

“The price we pay for these kinds of revelations is credibility, and we just can’t afford to lose any more of that in this field,” said Dr. E. Fuller Torrey, executive director of the Stanley Medical Research Institute, which finances psychiatric studies. “In the area of child psychiatry in particular, we know much less than we should, and we desperately need research that is not influenced by industry money.”

* * *

The entire article is here.

For a sample of related Situationist posts, see “The Situation of University Research,” “The company ‘had no control or influence over the research’ . . . .,” “Deep Capture – Part VII,” “Promoting Smoking through Situation,” “Industry-Funded Research,” “Industry-Funded Research – Part II,” and “Captured Science.”

The Situation of University Research

Today’s New York Times includes a terrific article, titled “At One University, Tobacco Money Is a Secret,“ by Alan Finder who describes how the tobacco industry continues to situationally manipulate the marketplace of ideas. We’ve excerpted a few excerpts from the story below.

* * *

On campuses nationwide, professors and administrators have passionately debated whether their universities should accept money for research from tobacco companies. But not at Virginia Commonwealth University, a public institution in Richmond, Va.

That is largely because hardly any faculty members or students there know that there is something to debate — a contract with extremely restrictive terms that the university signed in 2006 to do research for Philip Morris USA, the nation’s largest tobacco company and a unit of Altria Group.

The contract bars professors from publishing the results of their studies, or even talking about them, without Philip Morris’s permission. If “a third party,” including news organizations, asks about the agreement, university officials have to decline to comment and tell the company. Nearly all patent and other intellectual property rights go to the company, not the university or its professors.

“There is restrictive language in here,” said Francis L. Macrina, Virginia Commonwealth’s vice president for research, who acknowledged that many of the provisions violated the university’s guidelines for industry-sponsored research. “In the end, it was language we thought we could agree to. It’s a balancing act.”

But the contract, a copy of which The New York Times obtained under the Virginia Freedom of Information law, is highly unusual and raises questions about how far universities will go in search of scarce research dollars to enhance their standing. It also brings a new dimension to the already divisive debate on many campuses over whether it is appropriate for universities to accept tobacco money for research.

* * *

Philip Morris, based in Richmond, is a likely source for Virginia Commonwealth in its hunt for dollars from a finite number of corporations. Among tobacco companies, Philip Morris is the leader in investing in academic research. And for Virginia Commonwealth, expanding ties with its neighbor could produce other benefits like additional grants and support for other university functions.

About a dozen researchers and research ethicists from other universities were astonished at the restrictions in the contract, when they were told about it.

“When universities sign contracts with these covenants, they are basically giving up their ethos, compromising their values as a university,” said Sheldon Krimsky, a professor at Tufts University who is an expert on corporate influence on medical research. “There should be no debate about having a sponsor with control over the publishing of results.”

* * *

About 15 public health and medical schools no longer accept donations from the tobacco industry, and many major research universities continue to do so only if guaranteed independence to carry out the research and publish the results.

* * *

A tenured scientist at Virginia Commonwealth, who would not be interviewed for attribution because he said he feared retribution against his junior colleagues, called the contract’s restrictions, especially the limitations on publication, “completely unacceptable in the research world.”

For most of the decade, Philip Morris financed conventional research grants, using a scientific panel to select worthy research proposals from professors. The company granted independence to the professors whose work it sponsored and left them free to publish.

Even so, opponents of smoking opposed the grants, arguing that universities should not take money from tobacco companies because of the public health impact of smoking and what they viewed as the industry’s misuse of scientific research.

Last fall, Philip Morris began phasing out this program to switch to developing new products, said Dr. Solana, the company vice president. Some of the new research will be conducted internally, he said, at a new company research center in Richmond, and some will be contracted out to universities and corporations case by case.

The restricted contract with Virginia Commonwealth, Dr. Solana said, was part of what he hopes will be a new and different relationship between the company and universities. But scientists said such restrictions — especially the constraints on publication and what university officials can say publicly — are contrary to the open discussion essential to university research.

“It’s counter to the entire purpose and rationale of a university,” said David Rosner, a professor of public health and history at Columbia University. “It’s not a consulting company; it’s not just another commercial firm.

* * *

The entire article is here. For a sample of related Situationist posts, see “The company ‘had no control or influence over the research’ . . . .,” “Deep Capture – Part VII,” “Promoting Smoking through Situation,” “Industry-Funded Research,” “Industry-Funded Research – Part II,” and “Captured Science.”

The Situation of Judges

Below we have mashed up three articles about the recent, highly contentious Wisconsin Supreme Court election — “Big money, nasty ads highlight Wisconsin judicial race” by Bill Mears for CNN, “Life, liberty and the pursuit of a fair judiciary” from The Economist, and “Gableman victorious” by Stacy Forster and Patrick Marley for the Milwaukee Journal Sentinel — and sprinkled in several illustrative Youtube videos of campaign ads.

* * *

Justice is meant to be impartial. To this end, Britain’s judges are appointed for life. In America federal judges are as well. But in 39 states some or all judges must face election and re-election, often with unbecoming hoopla. An election to the Supreme Court of the state of Wisconsin has just involved about $5.5m and more than 12,000 aired advertisements. Habeas circus, one might say.

Michael Gableman defeated Louis Butler, an incumbent on Wisconsin’s Supreme Court, on April 1st, and the cacophony has not yet subsided.

The scuffle has revealed two worrying traits of America’s judicial elections.

First, they have become bitter contests. In 2006 91% of Supreme Court elections featured television advertisements, up from 22% in 2000, according to New York University’s Brennan Center. Second, the war over tort, or liability, reform has turned judicial elections into a nasty battlefield—especially in those states where state Supreme Court justices are directly elected. Karl Rove, once George Bush’s Svengali, ascended in part by helping Texas businessmen fight trial lawyers for control of that state’s highest court. The most expensive judicial race in America’s history, a $9.3m fight in 2004, saw tort interests pour money into rival campaigns for a seat on the Illinois Supreme Court.

In Wisconsin the signs are troubling. The state’s new era of judicial elections began last year. A series of rulings had galvanised corporate leaders, explains James Buchen of Wisconsin Manufacturers and Commerce (WMC), the state’s business lobby. In one ruling in 2005, the Supreme Court overturned the state’s caps on medical-malpractice cases. In another, the court ruled that a plaintiff could sue several manufacturers when he did not know which (if any) had caused him injury.

In 2007 groups from all sides poured cash into a state Supreme Court race, spending $5.8m. In Wisconsin’s April election, one estimate is that the candidates together raised about $1m (Mr Butler outspent Mr Gableman), while outside groups such as WMC and the teachers’ union spent more than $4.5m.

“What’s remarkable about this race is how dominant the outside groups have been,” said J.R. Ross, editor at WisPolitics.com. “They’ve outspent the candidates themselves 10-to-1 on TV ads. They’re essentially drowning out the messages of Butler and Gableman.

“Wisconsin is the current hot spot in the culture wars that have played in the courts in recent years,” said Rebecca Kourlis, founder and director of the Institute for the Advancement of the American Legal System, which works to improve the civil justice system. “More and more money is being poured into these judicial races, more planning on how candidates position themselves for a political audience. These elections have simply gotten out of control.”

[Gableman] raised far less in campaign funds than Butler, but benefited from support by such third-party groups as Wisconsin Manufacturers & Commerce, the state’s biggest business lobby; the Coalition for America’s Families, which advocates for what it calls conservative causes; and Wisconsin Club for Growth, [see their 30-second ad below] which supports lower taxes.

The Brennan Center for Justice estimates the three groups had spent a combined $1.4 million on ads.

The Greater Wisconsin Committee, a group that says it backs progressive causes, ran pro-Butler and anti-Gableman ads. The Wisconsin Education Association Council, the state’s largest teacher’s union, ran an anti-Gableman spot.

Gableman is supported by a coalition of sheriff’s and district attorneys, and Wisconsin Right to Life.

Butler has the nod from a number of judges, law enforcement groups and the state AFL-CIO.

This year’s flood of money might have drawn less censure if it had spurred a proper debate on judicial philosophy. It didn’t. Mr Gableman’s campaign produced an advertisement suggesting that Mr Butler, a black man, had helped free a black rapist. An advertisement supporting Mr Butler claimed that Mr Gableman was soft on paedophiles. Even WMC’s advertisements were about crime.

Unlike some states, Wisconsin does not require candidates to list themselves by party. Butler was appointed to the state high court in 2004 by Democratic Gov. Jim Doyle. He runs on his judicial and life experience. The only African-American on the bench, Butler, 56, has been a longtime judge.

He was previously a public defender, and that is where the current attack ads have focused. His opponent ran his first TV commercial suggesting Butler’s appellate defense of a child rapist led to the defendant’s early release. But the man had, in fact, served his entire sentence.

Butler said the integrity of the judicial system had been challenged by the negativity of the campaign and said reform was needed.

Gableman, who was criticized widely for an ad attacking Butler’s work as a public defender, said that voters deserved to know about the backgrounds of the candidates and that he was “very proud of the fact we ran a positive campaign.

“You don’t get a more stark contrast or clear contrast than that between a prosecutor and criminal defense attorney,” Gableman said. “Therefore, I don’t view it as a negative ad. I view it as an ad that illustrates the real differences of our professional backgrounds.”

A conservative group, Coalition for America’s Families, ran its own spot criticizing Butler for writing an opinion overturning another rapist’s conviction. The group also claimed he had “sided with criminals nearly 60 percent of the time,” a statistic it has not substantiated.

Factcheck.org, a self-described “consumer advocate” for voters, called the ad “distorted.”

Gableman eventually called on the coalition to stop the ads.

Gableman, also a longtime state judge, calls himself a judicial conservative. He is a former prosecutor and campaigns on a tough law-and-order agenda.

A left-leaning group — Greater Wisconsin Committee — ran an ad suggesting Gableman got his job only because of political payback. The ad implied the judge was named to his current seat after a $1,250 campaign donation to then-Republican Gov. Scott McCallum, who appointed him. The ad was attacked by a non-partisan state monitoring committee. McCallum denounced the group as well, saying Gableman is well-qualified for the bench.

Regardless of the tenor of the campaign, money may be undermining faith in the court. A recent poll conducted for Justice at Stake, a group devoted to judicial independence, found that 78% of respondents in Wisconsin believe campaign contributions influence judges’ rulings.

The stakes in Wisconsin and nationwide are high, and are fueling renewed calls for reform on how judges are selected. The 19 states that held state Supreme Court elections last year shattered previous campaign cycle spending records — $34.4 million in all — which have increased steadily in the past decade.

The idea of judges running for elected office may seem like a strange concept, but it is the law in 21 states that have some sort of contested system for top judges. Thirty states — along with the federal system — appoint their judges, often under a merit selection system in which the governor gets the final say.

All 21 states will hold elections for Supreme Court seats this fall, but the early race in Wisconsin is considered a political bellwether of the tenor and sway outside partisan groups will have on how these campaign will be run.

The seven Wisconsin Supreme Court justices, including Butler, have already signed a letter saying they support the creation of a system of public financing for state Supreme Court campaigns.

The state Senate this session passed a bill that would have set up a system of public financing, but it did not advance in the Assembly

The question is whether to change the new dispensation and, if so, how? Comprehensive legal reform might help keep the tort war from seeping into judicial elections. But the elections themselves are unlikely to be scrapped. More feasible would be to pass reforms, such as public financing for campaigns or stricter rules to prevent conflicts of interest. In Wisconsin politicians and Supreme Court judges all work beneath the state capitol’s giant dome. It is getting hard to tell the difference between them.

A study released last October by the non-partisan Annenberg Public Policy Center found people in states with no partisan elections for judges had a higher level of trust and confidence in the judiciary. But two-thirds of those surveyed also preferred electing judges directly to having them appointed.

* * *

For Situationist related posts, see “The Situation of Judging – Part I,” and “The Situation of Judging – Part II.”

Ayn Rand’s Dispositionism: The Situation of Ideas

Last week Clark Davis had a piece titled “Ayn Rand Studies on Campus,” on NPR’s Morning Edition, May 6, 2008. The story illustrates one of the many ways in which dispositionism is promoted (and, by implication, situationism is undermined).

To listen to the story (roughly 4 minutes), click here. We have excerpted portions of the transcript below and added two videos (the first and second parts) of a remarkable Dan Rather interview of Ayn Rand.

* * *

John Allison, CEO of banking giant BB&T, calls Ayn Rand’s novel Atlas Shrugged “the best defense of capitalism ever written.” He says that Rand changed his life, and he’s working to ensure that the deceased author isn’t left out of the nation’s college curricula.

Since 2005, the BB&T Charitable Foundation has given 25 colleges and universities several million dollars to start programs devoted to the study of Rand’s books and economic philosophy. In January, the company announced it was donating $1 million to Marshall University in West Virginia.

The money would establish a course dedicated to Rand’s Atlas Shrugged and Adam Smith’s The Wealth of Nations, and help create the BB&T Center for the Advancement of American Capitalism on campus.

But not everyone at the university is excited by the gift. Rick Wilson, a sociology instructor at Marshall and head of the West Virginia Economic Justice Project, says that Rand’s philosophy, objectivism, is based on the view that selfishness is the only moral value.

“[Objectivism] goes against the collective wisdom of the human race, I think, pretty much everywhere,” says Wilson. “I think it’s a curious interpretation of philanthropy to use corporate money to promote, really, an extreme philosophy.”

Two years ago, faculty at Meredith College in North Carolina rejected a $420,000 grant from BB&T, citing concerns about allowing a corporation to develop curricula.

But Marshall professor Cal Kent, who is slated to direct the center funded by the grant, says BB&T officials just want to give students an additional perspective on capitalism.

“In my experience you’re not able to propagandize students,” says Kent. “Certainly that’s not our intent in this course, and if it were our intent, we would be doomed for failure from the beginning.”

Kent adds that Rand’s philosophy isn’t as scary as some of her detractors insist.

“It’s based on the idea of individualism,” he says. “That means the freedom of individuals to contract with other people, the freedom to choose their occupation, the freedom to do what they see as being in their own best self interest with the resources they have.”

* * *

* * *

To read a related Situationist post, see “Deep Capture – Part X.”