Thursday, December 27, 2007

Sunday, December 23, 2007

Beyond Daubert to Reality

Daubert web site.

Let's stick to a standard of care testimony. The expert may properly cite studies. These are authored by academics, most often. Clinicians spread advances by word of mouth, and they get accepted or rejected within weeks. Strong remedies will become self-evident at the gut level. Weak or ineffective remedies will fail to impress and get dropped.

If the expert proposes some standard of care, e.g. heart decelerations this many times require C-Sections, should we settle for academic studies? Shouldn't we demand the expert provide his own records on the management of similarly situated patients? If the expert can only provide 3 such records, does he qualify as an expert? Can one be expert after 3 repetitions of decision making? If he can provide a dozen such records, are they the totality of the records of similar patients, and not cherry picked records agreeing with testimony? One should demand all the records of the expert, and sample them. If a record is found that contradicts the testimony, a mistrial should be called, and the legal costs of both sides should be obtained from the lying expert's personal assets.

And, yes, experts should feel intimidated. With the absurd arrogance to dictate practices to the doctors of the entire state at the point of a gun, they should take the consequences of their lying prostitution to the land pirate.

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If opposing experts testify in good faith, then a scientific controversy arises. The court has no competence to resolve it. Only additional data, confirmed by others may resolve a scientific controversy.

Whenever two legitimate experts testify, the case requires summary dismissal, as beyond the purview of the court. Failure to do so violates the procedural due process right to a fair hearing of the civil defendant.

Saturday, December 15, 2007

Lexism - Bias Against the Lawyer

As in, "This site is run by a lexist pig."

Sunday, December 9, 2007

Yale Law Clinic Sues Yale Hospital

Reviewed, noted here.

Licensing Adult Pleasures, Not Prohibition, To Prevent Harm, Alternative to War on Whatever

The majority of smokers do not get lung cancer. Smoke two packs a day for fifty years. Only one in seven such people get lung cancer. Why should the other six pay the price of prohibition?

The Constitution requires the showing of harm in a compelling state interest before abridging a freedom.

A licensing approach can stop harm without depriving others of adult pleasures.

Upon reaching adulthood, people could apply for separate licenses to drink alcohol, smoke, perhaps eat rich foods. People who committed crimes as juveniles should prove they have reformed. The clear and convincing standard of proof applies to licenses.

One commenter proposed insurance coverage for the harm from the adult pleasure.

Another objected to 1) loss of freedom; 2) the temptation of lawyers to increase fees, and to make the license a source of revenue.

The federal statute or constitutional amendment should prohibit any collateral purposes. It should restrict all licensing fees to the exact cost of processing, and prohibit any additional fee.

The licensing of the individual grants full freedom of enjoyment of the adult pleasure, until harm has started. The costs of all harms most often falls on the taxpayer.

Update: Not so far fetched. Here.

Carnegie Foundation Report on Legal Education

Some things went unstated in the Summary. These may not be spoken out loud, without expulsion.

The education must have the structure and methods of indoctrination ("thinking like a lawyer"). It is impossible to become a lawyer otherwise. Why?

The education must blind very intelligent people to the supernatural nature of the core doctrines, future forecasting, mind reading, the standards of conduct of a mandatorily fictional character. Finally, the central word of the law, reasonable, in accordance with the New Testament, an unlawful meaning in our secular nation.

The student must learn to fear and obey a hierarchy. The latter makes 99% of the policy decisions of the three branches of government. When entitled students question this approach, the false reply returns, it's to give you the courage to advocate in a court.

The student must be overwhelmed with massive numbers of rules, difficult issue spotting, as in a puzzle. This busy work has no empirical validation. Still, it prevents the student from noticing this little problem. Every self-stated goal of every law subject is in utter failure. Were students to ever realize that, the authority of the hierarchy would diminish.

School bullies the student into lawyer discipline, from day one. The student may not even express a drunken opinion about any legal matter at a party without fear of being reported and punished. The student does not learn, lawyer discipline ignores all Rules of Conduct, but four. These further hierarchical interests.

What is at stake for the hierarchy? They run half the economy by their control of government. They have a highly successful rent seeking business, bringing in $tril yearly, making it the wealthiest and most successful syndicate in history.

Sunday, December 2, 2007

License the User of Adult Substances and Pleasures

In this NYT Ethicist, the liquor store management asks, what to do if a relative begs him to not sell to an alcoholic. The Ethicist has no credibility. He takes an appalling, ridiculous legalistic approach, given the damages of alcoholism. However, he inspired a new idea.

Prohibition was a great period in American life. Crime decreased, in contrast to Hollywood propaganda. The markers of alcoholism decreased, such as deaths from liver failure. Consumption only decreased by 50%. It had no popular support and failed. Draconian measures would be required to enforce it in the future. Laws should have popular support.

What about a licensing approach? Adults would receive a drinking license. Servers would have to verify licensure. The alcoholic adults would lose their licenses. Anyone supplying an unlicensed adult should go to jail for a short period. If harm, even to the alcoholic himself, the supplier is liable in torts. Paid supplying is an intentional tort with scienter, subject to exemplary damages. Unpaid supplying to negligence liability, after the jail term is served. If the supplier has no assets, the criminal conviction permits hard labor in restitution for the full value of the damage.

No data supports nor rebutts this approach. However, it leaves alone the 95% of people who drink without problems. It deters and seeks compensation from the enablers of the problem drinker. It seeks to reduce availability, but only to the problem drinker. As the drinker causes problems, reports from sources add points to the license, until withdrawn.

The Federal government may not mandate states pass any law. They may condition federal health payments for passage of such licensing. The Federal government certainly has a compelling government interest in reducing the impact of alcohol on health costs.

The licensing of the user approach, points, and mandatory insurance applies to all adult substances and pleasures.