"Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passions, they cannot alter the state of facts and evidence." ~ John Adams

A recent exchange between Senior D.C. Circuit Judge Raymond Randolph and D.C. District Judge Emmet Sullivan offered a glimpse into the unfiltered perspective of a federal judge, and serves as a stark illustration of the need for scientific literacy in the judicial community. At a time when our legal system is hearing increasingly complex cases involving climate science, we need a judiciary that will rule based on facts and the law, not preconceived notions or partisan skepticism.

Judge Randolph’s Attack on Climate Science

On August 16, the Washington Post reported that Judge Randolph lashed out at Judge Sullivan after Sullivan shared information regarding an upcoming educational seminar for federal judges on climate science. In an accidental reply-all message, Judge Randolph sent an irate response, attacking Judge Sullivan for “subjecting our colleagues to this nonsense” and declaring “the supposedly [sic] science and stuff you are now sponsoring is nothing of the sort.” He also threatened to report Judge Sullivan to the ethics committee, apparently deeming the sharing of an educational event to be an impropriety.

The so-called “nonsense” event was sponsored by the Federal Judicial Center, the congressionally established education and research center of the federal courts, and intended “to meet judges’ need for basic familiarity with climate science concepts” by “provid[ing] neutral, objective information to the judiciary about the science of climate change as it is understood by the expert scientific community.” In a subsequent message, Randolph doubled down on his criticism of the event, stating “I continue to disagree with [the Federal Judicial Center’s] conclusion about the propriety of the program” and later arguing to a colleague that attending the event would “lend credence to one side of the climate change debate that is quite improper.”

While climate denial may persist in the public sphere, among the scientific community the debate about the existence and cause of climate change is resolved. There is overwhelming evidence concluding that the earth is warming and human activity is the primary contributor. These are not arguments to be litigated in a courtroom, they are fixed truths upon which increasingly complex cases are being built. But as the wave of climate change litigation grows, will Judge Randolph and others like him allow their personal climate skepticism to influence their judicial decision-making?

Judge Randolph retains the right to be a climate denier in his personal capacity, but concerns arise when his refusal to accept scientific evidence appears to impact the outcome of his cases. And his record causes such concerns. Judge Randolph authored the D.C. Circuit decision in Massachusetts v. EPA that held the EPA had the discretion to not regulate greenhouse gases under the Clean Air Act. Judge Randolph fixated on questioning the science of climate change and misrepresented the National Research Council’s findings that the causal link between greenhouse gas emissions and climate change could not be “unequivocally established,” a standard that scientists also fail to establish for the theory of gravity. The Supreme Court overturned his decision two years later.

Judge Randolph also shoehorned his skepticism towards climate science into an unrelated 2015 First Amendment case, pondering, “If the government required labels on all internal combustion engines stating that “USE OF THIS PRODUCT CONTRIBUTES TO GLOBAL WARMING” would that be fact or opinion? It is easy to convert many statements of opinion into assertions of fact simply by removing the words ‘in my opinion’....” Disregard for science is not a judicial philosophy, it’s judicial misconduct, and the failure of judges to keep up with scientific consensus over the years has had serious consequences . Coincidentally, Judge Randolph’s hypothetical draws close comparison to tobacco litigation, the history of which provides insight into the future of climate change litigation, and the impact of judges rejecting science.

Looking to the history of Tobacco Litigation for guidance

The link between serious health effects and tobacco was noted as early as the 18^th century, and scientific breakthroughs in the 1920s and 30s drew the specific connection between smoking and lung cancer. By the early 50s the causal connection to lung cancer was considered a scientific certainty, both in academia and within the tobacco industry’s own research. When the first major lawsuit was filed in 1954, legal experts at the time believed it would be the first in a series of lawsuits to take down the tobacco companies. Instead, through the use of medical experts disputing the facts, legal experts disputing the law, and lobbyists blocking reform, the tobacco industry enjoyed 300 legal victories until their first major loss in the courtroom, in 1992.

Today, we are seeing the beginnings of a broad range of climate change lawsuits that seek to take on fossil fuel companies in a manner quite similar to the tobacco industry. And those who are quick to point to dismissals of some of the initial nuisance cases should consider those 300 tobacco cases diligently fought over the course of  nearly fifty years.

Conclusion

Lawsuits centered on climate change are not going away anytime soon, and a basic understanding and acceptance of climate science and its causes is the first step for judges to appropriately address the increasingly complex litigation. It is a fundamental responsibility for our judges to equip themselves with the knowledge to responsibly hear these cases. Judge Randolph is not alone in his climate denial, but the science of climate change will not make way for the conveniences of political beliefs. Ignorance of the facts may be an excuse in common law, but it’s no excuse for a federal judge.

Until we reach a resolution, I suggest adopting the wisdom of Justice Breyer:

“In this age of science, we must build legal foundations that are sound in science as well as in law. Scientists have offered their help. We in the legal community should accept that offer.”

Editor’s Note: Attorney Flint Taylor of the People’s Law Office in Chicago, who was a 2018 recipient of the Chicago ACS Chapter’s Abner Mikva Legal Legends Award, has recently published a book, titled The Torture Machine, Racism and Police Violence in Chicago. Given the historical and current significance of this book to both the legal and human rights communities in Chicago and nationally, we are republishing, with the permission of Democracy Now!, an edited portion of the March 20, 2019 interview that Taylor did about the book, and his 50 years of work fighting against racism and for justice, with  DN!’s co-hosts Amy Goodman and Juan Gonzalez. Taylor will be discussing his book at several locations in Chicago during September, will be presenting at the CUNY School of Law on the afternoon of October 3^rd and participating in a book panel at the Shomburg Center at 6:30 that evening. For more information about Taylor’s appearances, to purchase a copy of his book, or to schedule an appearance at your school or bookstore, please contact Haymarket Books at https://www.haymarketbooks.org/

Democracy Now! With Amy Goodman and Juan Gonzalez: https://www.democracynow.org/2019/3/20/the_torture_machine_flint_taylor_on

AMY GOODMAN: We look at the Chicago Police Department’s long history of violence against African Americans, from the murder of Black Panther Fred Hampton to the reign of torture overseen by commander Jon Burge. The brutality of the Chicago police force is laid bare in a new book by leading civil rights lawyer Flint Taylor. It’s called “The Torture Machine: Racism and Police Violence in Chicago.” The book exposes decades of corruption and cover-ups in the Chicago Police Department. We speak with Flint Taylor, who has represented survivors of police brutality in Chicago for nearly half a century. Flint, welcome back to Democracy Now! Why did you name your book The Torture Machine?

FLINT TAYLOR: Thank you, I named it The Torture Machine for two different but related reasons. First of all is rather obvious. On the cover, the torture machine, that was the electric shock box that the notorious Commander Jon Burge and his men used on many African-American suspects over that 20-year period that you just mentioned. But also “the torture machine” refers to Chicago’s machine, the notorious political machine, often known as the Daley machine and the Democratic machine, here in the city, which not only countenanced this torture, covered it up, but also was involved at the highest levels of the police department and, yes, the State’s Attorney’s Office, when Richard M. Daley was the state’s attorney of Cook County—were involved in this conspiracy, this scandal, that has gone on for so many decades in this city.

JUAN GONZÁLEZ: Well, Flint, I want to, first, congratulate you on the book. It is really a riveting account. It’s almost a forensic analysis of decades of collusion between judges, politicians, prosecutors and the police to basically engage in systemic human rights violation. But you start the book with an incident that, for many young people today, is not even part of history, but it’s not often covered history. And you make the statement that the killing of Fred Hampton and Mark Clark really was a seminal moment in the development of Chicago, in the modern history of Chicago. And I’m wondering if you could first give us a sense of why you believe that’s so,

FLINT TAYLOR: On December 4th, 1969, 14 Chicago police officers working under the control of the state’s attorney of Cook County—at that time, Edward Hanrahan—raided a West Side apartment where Black Panthers were sleeping. And one of those Black Panthers was the chairman of the Black Panther Party, Fred Hampton, a charismatic young leader, who was targeted not only by the police, but by, it turns out, the FBI. And that raid, which was covered up, was claimed to be at first a shootout, was later shown to be a total shoot-in. And then, over the years, as we and others were able to litigate a case in federal court, we were able to show not only that this was a vicious, racist attack on the Panthers and its leadership, where two men were killed and many others wounded, but it was part and parcel of the FBI’s COINTELPRO program, the counterintelligence program devised and implemented by J. Edgar Hoover over the years, which in the late ’60s targeted the Black Panther Party, and specifically Fred Hampton in Chicago, and, in fact, that the raid on the apartment was part of this COINTELPRO program.

JUAN GONZÁLEZ: And, you make the point in your book that that was the beginning of the mass resistance of the black community that eventually led to the election of Harold Washington as the first black mayor of Chicago. . . . [Film Clip about Hampton case shown] . . .  And so, Flint, the reality was, as you document in your book, that this was actually a direct assassination and that there was a long struggle, on your part, to—because you were there. You were able to get to the house the very day that Hampton was killed. Could you talk about this conspiracy to kill one of the rising radical leaders of the black community?

FLINT TAYLOR: Well, we see now—and it was uncovered during our trial in the ’70s—that the COINTELPRO program targeted black liberation organizations and leaders. And they specifically named targets—Dr. King, Stokely Carmichael, Rap Brown, Elijah Muhammad—and pointed to Malcolm X, as well. And as the Panthers rose and became powerful, first in Oakland and later in Chicago—as you can see from the clip what a charismatic, young leader, at 21, Fred Hampton was—Hoover and his people focused on the Black Panther Party and, specifically in Chicago, on Fred Hampton.

They had an informant in the Black Panther Party by the name of William O’Neal. He sketched out a floor plan that showed where Hampton would be sleeping. They went to the apartment. They supplied that floor plan to the police—the FBI did. They went to the apartment in the early-morning hours. And Fred was asleep. It appeared that he had been drugged by O’Neal or some other agent. And he was murdered in his bed.

Over the years, we uncovered documents that showed this floor plan. That was all covered up, as well. It showed that the FBI took credit for this raid as part of its COINTELPRO program. And it showed even that O’Neal, after the raid, was given by Hoover and the people in Chicago a $300 bonus, what we later called the “30 pieces of silver” for the informant, O’Neal, for setting up the raid. So, he was receiving from Hoover a bonus for the success of the raid at the same time he was serving as a pallbearer in Fred Hampton’s funeral.

AMY GOODMAN: Flint Taylor, you pursued this case civilly for 13 years. What came out of it?

FLINT TAYLOR: Well, a lot of what I’ve just mentioned came out of it. The narrative shifted over the years, thanks to the community, thanks to the Panthers and thanks to the lawsuit that we filed. And as you could hear from the clip, the position that the police took—and they thought they were going to get away with it scot-free—was that this was a shootout, that these were vicious Black Panthers, all of that. Well, because we and the Panthers went to that apartment, we were able to show that it was a shoot-in. We were able to change the narrative to the fact that it was an unjustified and violent shoot-in by the police. But over the years, as we were able to join the FBI in the case, we were able to uncover these FBI documents that showed that, yes, it was not just a murder, it was not just a shoot-in, but it was an assassination. It was a political assassination straight from Washington and the FBI.

JUAN GONZÁLEZ: Flint, very shortly after the murder of Fred Hampton, you got involved in another case of the Wilson brothers, and which began the uncovering of the Jon Burge scandal, that, again, would take you decades, really, to finally get some measure of justice.

FLINT TAYLOR: Yes. The Wilson case arose in February of 1982. Two white police officers were shot and killed. The two black perpetrators had escaped. And the city of Chicago, under [Mayor] Jane Byrne and Police Superintendent Brzeczek, set out on the most vicious and terroristic manhunt in the history of the city. They terrorized the black community. They kicked in doors. They dragged people out of their houses. If they thought that they had some information about the killings, they tortured them. They tortured them with suffocation. They tortured them with all kinds of medieval types of torture. They finally found the two people who the eyewitness identified as the persons who were involved in the crime. And the person who was identified as the shooter was Andrew Wilson.

Andrew Wilson was taken back to a police headquarters on the South Side of Chicago. And this notorious commander, who at that time was a lieutenant in charge of the manhunt, by the name of Jon Burge, led the torture of Andrew Wilson that included electric shock with the torture machine, that is mentioned and depicted in my book, and suffocation with a bag. They handcuffed him across an old, ribbed steam radiator and electric-shocked him so that he was burned across his chest. And they also burned him with cigarettes, beat him and got a confession from him.

This came out at that time, but nobody really cared. The state’s attorney of Cook County, Richard Daley, was informed specifically by a doctor and the police superintendent about this torture, and he chose to do nothing about it. Because he did nothing about it, Burge was able to, in the next 10 years, torture another 75 individuals—all African-American men.

And a few years after that, Andrew Wilson, who had been sentenced to death, filed a pro se complaint in federal court challenging his torture and suing Burge. That’s how we got involved. During his trial, an anonymous police source, who we later dubbed as “Deep Badge,” started to give me information that laid out exactly the map of what had happened, the systemic nature of the torture, the fact that Daley and his surrogates were involved, that the police superintendent, that the mayor were all involved.

And we followed that map, basically, for the next 20, 30 years, even as we sit here today, to uncover evidence that supported the idea that this was a systemic torture. This was something that sent people to death row. This was something that convicted innocent people. And, ultimately, all of this led to Burge’s firing. It led to, many, many years later, his conviction for obstruction of justice for lying about the torture. And, of course, it led to the remarkable reparations that the city of Chicago granted to the survivors of police torture and their families here a couple of years ago.

AMY GOODMAN: Flint Taylor, we’re going to break. This is Democracy Now! Flint Taylor, attorney with People’s Law Office, known as the PLO, has represented survivors of police torture in Chicago for nearly half a century. His new book, is The Torture Machine: Racism and Police Violence in Chicago.

The following is an interview with Nora Freeman Engstrom, Professor of Law and Deane F. Johnson Faculty Scholar, and Michelle Mello, Professor of Law and Professor of Health Research and Policy, both at Stanford University. This is reprinted with permission from the Stanford Law School blog.

On August 26, Judge Thad Balkman delivered a $572 million judgment against pharmaceutical giant Johnson & Johnson for the company’s role in fueling the opioid epidemic in Oklahoma. In the discussion that follows, Stanford Law Professors Michelle Mello and Nora Freeman Engstrom discuss the decision and how other cases tied to the national opioid crisis are developing.

The Oklahoma decision took many onlookers by surprise. How did the case unfold? And what did Judge Balkman find?

On Monday, Cleveland County District Judge Thad Balkman of Oklahoma issued a judgment that capped off a long and closely-scrutinized trial wherein the Oklahoma Attorney General faced off against Johnson & Johnson (J&J), claiming that J&J contributed to the opioid epidemic that has devastated the state of Oklahoma.

To understand the verdict, a bit of background is helpful. When Oklahoma initially sued, it cast the net broadly, asserting claims against several defendants under several causes of action.  Certain defendants (namely, Purdue and Teva) chose to settle rather than roll the dice at trial. (Purdue, the maker of OxyContin, agreed to pay Oklahoma $270 million and Teva, one of the world’s leading providers of generic drugs, $85 million; neither admitted wrongdoing.)  Further, over time, Oklahoma’s various causes of action got winnowed down to the singular claim that J&J had created a public nuisance by aggressively and deceptively marketing opioid products to Oklahoma’s doctors and patients.  This posture meant that Oklahoma’s victory at trial was far from a foregone conclusion, as public nuisance claims can be very hard to prove, particularly in cases that relate to dangerous products.

With that table set, the trial began on May 28, 2019.  In a crowded courtroom in Cleveland County, it stretched on for nearly seven weeks and featured dozens of witnesses and more than 800 exhibits. The trial was a bench trial, meaning there was no jury, but there was a written opinion explaining the judge’s decision.  Judge Balkman’s 42-page opinion offers a cogent summary of the evidence and governing law and, broadly, vindicates Oklahoma’s litigation strategy. The opinion finds that J&J engaged in a deceptive marketing campaign designed to convince Oklahoma doctors and the public that opioids were safe and effective for the long-term treatment of chronic, non-malignant pain. Further, this “false, misleading, and dangerous marketing” caused “exponentially increasing rates of addiction [and] overdose death,” which ravaged the Sooner State. The picture Judge Balkman draws is stark and, for J&J, devastating.

Are individuals suing drug companies too? Are there class action cases that are relevant?

There are some suits by individuals, but we don’t believe that’s where the big money damages—and the real social impact of the litigation—will be.  More important is the pending federal multi-district litigation (MDL), which consolidates nearly 2,000 individual federal lawsuits brought by cities, counties, municipalities, and tribal governments in a single action before Judge Dan Polster in Cleveland, Ohio. Additionally, 48 states have initiated separate litigation, with a lineup of claims and defendants similar to the MDL.

Does this win for Oklahoma mean these other plaintiffs have an easy road ahead?

Not easy, but potentially easier. The Oklahoma case is what we call a bellwether. Like the ram that leads the other sheep this way or that, the bellwether trial doesn’t control the path of future litigation. But it does go first, and it helps to indicate trends.

As a bellwether, the big verdict here is very reassuring to the many states, counties, municipalities, and tribes suing opioid makers, distributors, and retailers, and it is, correspondingly, very disturbing for those who made and sold opioids to the American public.  The verdict suggests that this litigation has legs, and that judges and juries may be willing to pin blame not just on Purdue, the maker of OxyContin, but on others who played an arguably less central role in fueling this public health crisis.

What is striking is how damning Judge Balkman’s factual conclusions about J&J’s conduct are, and how similar they are to the allegations made against other opioid manufacturers in other cases.  All the things he objected to regarding J&J’s marketing practices are things that others, too, allegedly have done.  Some of them are things that multiple companies banded together to do. Plaintiffs’ attorneys should be feeling pretty confident about their chances of persuading other courts that those practices are problematic.

Is Oklahoma free to use the award as it wishes? Will the state share some of the award with the people who died or suffered in the opioid crisis (if the decision is upheld on appeal)?

The damages in this case are intended to fund the Oklahoma’s “nuisance abatement plan.”  That’s the remedy in a public nuisance case: The defendant has to pay to clean up the mess it made. In this case, Oklahoma provided a detailed plan laying out what would be needed to abate the opioid problem in the state. The costs added up to $572 million for the first year, and that’s what the judge awarded—not the $17 billion Oklahoma sought for a multi-year abatement effort.

The plan specifies that the money will be used for opioid use disorder screening, prevention and treatment ($292 million), housing and other services for those in recovery ($32 million), continuing medical education programs ($108 million), a pain management benefit program ($103 million), treatment of neonatal abstinence syndrome ($21 million), and other services.  Individuals won’t be direct recipients of the funds, though they may receive the services funded.

Legally, what happens next?

J&J has vowed to appeal the “flawed” Oklahoma judgment, and we expect that the judgment will be appealed, first to Oklahoma’s intermediate, and then, likely, to its supreme, court.  More immediately, though, attention will turn from Oklahoma to Ohio.  The first bellwether trial in the MDL, involving claims from Ohio’s Cuyahoga and Summit counties, is scheduled to begin on October 21.

Even as they prepare for trial, however, lawyers for both plaintiffs and defendants are also, no doubt, continuing to work toward reaching a broad and encompassing settlement.  When Judge Polster was first assigned the MDL back in January 2018, he made no bones about his desire to do “something meaningful to abate this crisis”—and to do it quickly.  It hasn’t been easy to execute on that, which isn’t surprising given the unprecedented magnitude and complexity of the litigation.

Still, we expect that, sooner or later, the opioid litigation will settle.  Indeed, even as we write, news is breaking that Purdue and the Sacklers may be in the midst of a negotiation whereby Purdue would declare bankruptcy and the Sacklers would contribute a cash payment of roughly $4.5 billion plus relinquish ownership of the company, in return for peace with plaintiffs.

But even forging a settlement involving just those two entities is tricky—and forging a broader settlement will be exponentially harder for a number of reasons.  One is that any truly global agreement needs to pass muster with a range of defendants, some of whom have comparatively shallow pockets, and all of whom sold (or made or distributed) different products, at different times, in different quantities, in different states.  And, on the other side of the table, any settlement agreement needs to get buy-in from both those plaintiffs in the MDL and also state attorneys’ general, who have their own distinct set of priorities and interests relating to their separate lawsuits.  Further, because only a small proportion of eligible cities and counties have joined the MDL to date, any global settlement needs to somehow—equitably but firmly—close the courthouse door on those potential future plaintiffs.  None of this will be easy to accomplish.  But whenever new information reduces uncertainty about how courts would resolve a legal dispute, settlement becomes more likely—and, here, the Oklahoma verdict makes a significant contribution.

 

Nora Freeman Engstrom, Professor of Law and Deane F. Johnson Faculty Scholar, is a nationally-recognized expert in tort law, legal ethics, and complex litigation. Her work explores the day-to-day operation of the tort system—particularly its interaction with alternative compensation mechanisms. Michelle Mello, Professor of Law and Professor of Health Research and Policy (School of Medicine), is a leading empirical health scholar and the author of more than 150 book chapters and articles, including “Drug Companies’ Liability for the Opioid Epidemic,” recently published in the New England Journal of Medicine. 

 

In the April ABA Journal, Bryan Garner devoted his monthly “On Words” column to textualism. I read it with interest because I too have written on the subject. Here’s the salient line from the column: “So the ideal textualist is content-neutral, at least in theory.”

Mark that: in theory. Actual practice is far different. In high-profile cases, cases that broadly shape the law, cases with political and ideological significance, self-proclaimed textualists reach conservative results with uncanny regularity. All judges start with text and make textual arguments, of course, but the arguments almost always lead textualists in the same direction.

The empirical evidence is striking. To see for yourself, go to this Scribes Journal article at 28–37 and this entire Wayne Law Review article. In the first one, I summarized 6 empirical studies—4 involving Justice Scalia’s opinions—and cited 11 other scholarly articles. They show unmistakably that the opinions of textualism’s preeminent advocate had a strong ideological bent. In the second article, I reviewed and coded 96 (!) overrulings by the Michigan Supreme Court between 2000 and 2015. The justices in the majority during almost all those years were also exponents of textualism. And 96.3% of their overrulings were ideologically conservative.

Textualism, in my view, has become the brand name for politically driven judging, and the notion that it is practiced in a neutral, objective way must be punctured.

You can recognize the textualist brand in a number of ways:

• by strenuous parsing in an effort to resolve ambiguity, followed by the assertion that it doesn’t exist;
• by overreliance on highly malleable and often-conflicting canons of construction;
• by a boundless confidence that the “plain language” of a statute compels such and such a result;
• by a general aversion to legislative history and a reluctance to consider values and sensible policy, even in close cases; and,
• above all, by a propensity to reach for dictionaries—those great grab bags—and pluck out convenient definitions. (Never mind that scholars have heaped criticism on the dictionary habit.)

Textualists exaggerate the number of appellate cases in which “close reading” or “fair reading” of the text, by itself, yields a singular, self-evident, or “plain” meaning. And too many textualists have convinced themselves that they are merely doing what the words say, applying the canons, looking at the linguistic cues and clues, and following the law—instead of consciously or unconsciously backing into the textual analysis that supports the outcome they prefer.

In fact, textualism is just as squishy, just as pliable, as any other theory of interpretation. Textualists will deny it, of course, even as they go on their ideological way. Just watch. And count me happy if I’m proved wrong.

Author’s note: This commentary is a somewhat longer version of a letter that I submitted to the ABA Journal in April. The letter was printed (with a few changes) in the July–August issue.