ControlsFreak
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User ID: 1422
ControlsFreak
2yr ago
Oh my. Let me ever so slightly rephrase. One that the consensus explicitly stated as of a few years ago. Refusing to accept what the public historical record unambiguously states on a key point is no way to go through life.
ControlsFreak
2yr ago
You can't see that a bunch of consensus in favor of the secret ballot is not a consensus against VBM unless one also believes a separate fact about it?
One that the consensus explicitly states.
ControlsFreak
2yr ago
The core of the disagreement is whether VBM (especially optional-VBM where anyone that wishes can go in person if they choose!) is sufficiently protective of the right to a secret ballot.
Those cites were pretty clear that the only consistent way to ensure the secret ballot and voter faith in such is in-person voting, with only one person being allowed in the voter booth at a time. They explicitly call out weaknesses of VBM in these terms. I am manufacturing nothing. It's there, in black and white, preserved by the beauty of the internet.
ControlsFreak
2yr ago
FYI, I think my comment is what @sliders1234 is referring to when he says that it's been discussed here before. In that comment, I survey international pro-democracy organizations which set out what it means for an election to be fair and free. It is clear that a consensus did exist across these organizations. That some locations have been bucking that consensus and that some groups have now turned entirely against that consensus does not mean that the consensus did not exist.
you didn't read the links contained within it.
I did, indeed, read the links contained within it. I'm a legal nerd, and a voracious consumer of text.
They were, in fact using aggressive marketing techniques and deception to convince doctors to prescribe higher doses when their patient responsibly wanted a lower dose.
The bolded part is nowhere in there. Not in your block quote, either.
There's nothing magic about the opinion of a medical professional. There's nothing unknown or mysterious about the idea that a trained medical professional or doctor would know the appropriate amount of painkillers to give to their patient.
Ok, great! Quick question, though... how come Scott talks about adjusting the dose of various medications up/down, depending on how it's going? He's a doctor, and a trained medical professional to boot. Shouldn't he like, just "know" the appropriate amount of whatever drug to give to his patients?
Purdue Pharma interfered with this
I mean, no? Did they, like, jump into the exam room, and when doc was "just knowing" the "appropriate" amount, they interfered and somehow made him increase it?
produced fraudulent research
I mean, also no? They produced (maybe just promoted?) a concept that may, indeed, be wrong. I don't actually know if it's wrong, and there's not enough information in the indictment to know, either. But they didn't actually produce any fraudulent research. It needs to be a hell of a lot closer to "we made up fake data to put in a paper that we submitted for publication" to be considered 'fraudulent research'.
which gave both large financial incentives
What large financial incentives? Come on, man. Stop hiding the ball.
And remember, the thing you're trying to show is that they "were ultimately responsible for and made substantial profits from a legal and corporate structure that heavily encouraged and even induced addiction in cases where it wasn't necessary". So, I'd definitely like to hear some things about their legal and corporate structure.
ControlsFreak
2yr ago
It looks like campaign money can also go into charities/foundations and PACs.
I wondered if this was the case and looked it up just before reading your comment. I'm now also wondering if this is more common than we know. The analogy I have in mind is Wikipedia. At some point, someone was the first person to publicly point out that Wikipedia takes in vastly more donations than they need to actually run the site, and oh by the way, much of the extra money seems to get funneled into leftist causes. I don't know how widely spread that piece of information is (and frankly, I haven't checked into it, so I'm hoping I'm not falling into Scott's "too good to check"). But has anyone done a broad look at what percentage of campaign funds actually get spent on the campaigns, themselves? What, in practice, often happens with the leftovers? I imagine plenty of it gets recycled into future campaigns, but how much? How much gets rolled into 'charitable organizations'? How many of those are, like, actually spending the money on real charitable things, rather than being a hiring/holding location for party operatives, as a way to keep a bench of folks on some sort of payroll? Do the different parties have different mixes of how their funds get used? Etc.
ControlsFreak
2yr ago
TIL that they didn't actually deport any Acadians directly to Louisiana. Thanks!
ControlsFreak
2yr ago
I’m oversimplifying immensely- refugees from the collapsing French new world empire were settled in then-Spanish Louisiana west of New Orleans to boost the white population.
Hoooo buddy. I definitely know an Acadian who would absolutely see red upon reading such an immense oversimplification. I would contend that the matter is somewhat subtle about the term "refugee", which often has a connotation of, "Well, some war or some shit was just happening, and it obviously sucked for people in the area, so they willingly chose the better of bad options to pick up and relocate," whereas the reality was that they were forcibly round up and deported. One can even have sympathies for the reasons why the deporters would do the deporting (or could even make a reasonable argument that whatever portion of the deported population shares in the blame for causing such reasons to exist), but my understanding is that the majority of them were collected by decree or chased down by men with guns, put onto ships at gunpoint, and then dumped in lands far away. It is not clear to me to what extent they were allowed much choice, once on the boat, as to which dump off spot they were dumped at.
ControlsFreak
2yr ago
I don't see anything about a referral program along those lines. Closest I can see to having money go back to doctors is that they had the standard sort of "we pay doctors to give speeches promoting our product" that basically every drug company does. Scott has talked about this before with a bunch of other drugs. But yeah, there's nothing that I see in the long documents about any program more directly along the lines of "if you prescribe higher doses or more pills, we, like, kick you back some money or something".
ControlsFreak
2yr ago
If the doctors don't have any extra rewards dangled before their eyes, I'd say their incentive would imply prescribing the lowest dose possible to get the job done. If you do dangle rewards for how much they prescribe, the incentives shift to "give as much as the patient can take".
I don't think the click-throughs actually have this, though. The marketing materials they used were not mustache-twirling evil; they used the standard sort of medical language to basically try to say exactly what you're saying - prescribe the dose that gets the job done... but if the current dose is not getting the job done, then titrate up to higher doses. The argument is entirely about what counts as "not getting the job done", which is completely analogous to asking what is "necessary". There's nothing in the click-throughs that can be interpreted as "give as much as the patient can take". There's nothing like "try the highest dose, look for side effects, then reduce if necessary". It's literally the other way around; increase the dose if it seems to be useful. This is obviously presented by plaintiffs as "encouraging them to increase the dose", but you can kinda only make these sorts of jumps if you have a magic metric for what is "necessary" or for what "gets the job done"... and then you sort of close your eyes and imagine that doctors aren't "really" doing that, that they're really just doing something else because of some alternate incentive that isn't even in evidence. It's entirely because we have no such metric that this entire kayfabe is even a plausible discussion.
Frankly, it's probably even more absurd than having hard liquor advertisements that have a little tag at the end saying "drink responsibly". At least in the click-through documents, they paid significantly more lip service to precisely the type of behavior that you're suggesting would be the Good and Right way to do it. They weren't like, "CHECK OUT HOW FUCKING AWESOME OUR HIGHEST DOSE IS! (...btw, try to be responsible with how you prescribe stuff)".
ControlsFreak
2yr ago
Precisely this. I'd say that a bunch of people in one vein reject the dominant social theory entirely, in part because of how poorly it even talks about such situations. It's mostly the "righties" who have otherwise accepted many of the underlying premises of the dominant social theory who end up driven to taking the position that men should never be held responsible.
The dominant social theory can marshal a standard set of what I believe to be poor arguments in favor of not holding responsible any particular group of people they would like to indemnify. With those same tools, such folks would like to simply apply the same class of results to men. They've bought the premises, the worldview, and are like folks who argued about how best to apply the principles of Lysenkoism to some particular set of circumstances. That they are said to be "on the right-wing of Lysenkoism" is pretty immaterial. One could view it as them all arguing in bad faith... or one could just believe that they're all just starting from the same completely whack set of premises such that their weird little sectarian scuffle appears utterly bizarre from the outside.
ControlsFreak
2yr ago
prescribe higher and higher doses of Oxycontin even when it wasn't necessary
There is literally only one sentence in the article that refers to dosing, and that's just repeating a claim from a plaintiff. It's pretty weak even from that plaintiff. I guarantee that you, the plaintiff, the FDA, nobody has any sort of rigorous line on when it is "necessary". Their "titration" stuff is basically the same damn thing that Scott talks about doing all the time with other drugs.
But in any event, I don't think the legalization folks have premises that allow saying things like, "Oh, we'll just set it up so that people are magically only allowed to go from having 20mg pills to 40mg pills when it's strictly necessary (according to some magic definition of necessary). That'll totally be a part of how complete legalization will be an utter boon to society and not a disaster!"
Instead, I think the complete legalization folks will say that all that shit is meaningless. We should just make them all legal. The 20mg pill, the 40mg pill, hell the 10mg pill and the 80mg pill, too. That people can just buy whichever one they want. Maybe they'll choose to get a doctor's recommendation. Maybe they'll even use your yet-to-be-published, magic definition of "necessary". But they think that people will somehow be responsible in their usage, substituting away from dangerous street drugs like heroin and fentanyl and toward, I don't know, whichever of the 10mg/20mg Oxy pill your magic chart says is "necessary". They might try a higher dose, like how some people try hard liquor instead of wine or beer, but for the most part, folks will prefer to objectively and responsibly move to a reasonable dose. And it's not like their marketing is ever going to be like, "Hey doctors, you should prescribe a higher dose even when your patient responsibly wants a lower dose," or, "Hey doctors, here is @FirmWeird's objectively correct definition of 'necessary'; don't use that."
But in any event, what does your magic, yet-unknown line of "necessary" have to do with addiction? What's the model connecting this completely unknown thing to rates of opioid addiction?
ControlsFreak
2yr ago
I did click the link. I read the whole thing. They don't explain any sort of model for the intermediate steps. If you need to convince yourself of this, just try. Try on your own to reconstruct a model of how it's supposed to work from the article. Use your own words. See if you can do it.
ControlsFreak
2yr ago
eventually, millions of Americans were struggling with opioid-use disorders.
This is an absolutely magic sentence that tells us nothing about how any of this works. There is no model here. At least, there is no model that can be stated in words, in public. My suspicion for why is because the model that is implicitly being used violates the claims of people who are pro-legalization.
ControlsFreak
2yr ago
NYT dropped either a leak from someone with high-level access or somebody floating a tester this morning. Whatever happens, this is wild to watch.
ControlsFreak
2yr ago
he was beck to his old self the next day in North Carolina
I think the main question with this is what it means to be 'back to his old self'. I did not see much of him in NC except the short clip that his campaign blasted on twitter. Best I could tell just from that, it looked like 'back to his old self' meant that he was back to reading from a teleprompter rather than hearing unscripted questions and comments from others, mentally formulating his own thoughts on the fly, and constructing cogent responses. It seemed to me like everyone in the campaign knew it was absolutely vital to survival to have some clip where it looked like he had 'energy', apart from such mental faculties, and the result was more like yelling what he read on a teleprompter than even just reading from a teleprompter. If 'teleprompter yelling' is 'back to his old self', and what we can expect in the future is competence in teleprompter yelling and not much other activity, I'm not sure that's particularly encouraging.
ControlsFreak
2yr ago
lean too hard on canned phrases (Marco Rubio I'm looking at you)
The idea... THE IDEA... that I would lean too hard on canned phrases.. is ridiculous.
I don't personally care about things like leaning too hard on canned phrases, but I definitely thought back to Rubio during this debate and wondered if anyone would pillory Biden for it. Maybe it's just taken a seat wayyyyy back in the back of the classroom, since it is such a phenomenally minor thing in comparison to the main debate about his general cognitive state.
ControlsFreak
2yr ago
retroactively
Many many agency actions are found to simply be not legal under existing law. You'll always have a variety of background laws that can easily be appealed to as the existing statute saying that it's illegal. @benmmurphy gave the example of false imprisonment. Could use things like misappropriation of government funds, etc. There are tons of existing examples, on the books right now, that could be used.
This doesn't make all previous decisions that relied on Chevron reversible
Right, but this is getting into the weeds of Chevron and is really beside the point. I'd say it's basically just not relevant.
Further, I would add that I don't think anyone could argue that -- generally -- an admin agency acting under Chevron was committing crimes by interpreting the laws as directed; rather they were operating under an error and without malice.
Many many times, being in error or not having malice is not a defense. But you know what you're really doing here? You're reinventing qualified immunity. Kinda funny, really. Like I said, there was always going to be some form of immunity; the question was always where the bounds were on that immunity.
ControlsFreak
2yr ago
There is an absolute abundance of situations that are just in that category of "government official does something, courts later rule it unconstitutional (or even just not statutorily supported)" that would completely change the dynamics of how government operates if those officials are then subject to criminal penalties. You can go to the blockbusters like NSA/CIA with intelligence stuff or the detention/rendition/interrogation stuff, but even just stuff like DAPA, student loan forgiveness, the non-appropriated disbursements of funds to health insurance companies, et cetera all the way down the line.
Frankly, this dovetails pretty nicely with all the stuff about Chevron, too. Like, not the actual issue in Chevron about how deference should work, but there are tons of administrative state hypos, where I can't imagine the people who are pro-Chevron are going to accept the possibility of criminal prosecution. If the head of an agency approves an action that is later determined by the courts to be unconstitutional or not supported by statute (which was even possible under Chevron if the statute wasn't ambiguous or the agency interpretation was far out enough), are all those folks going to be clamoring for them to be subject to criminal penalties? Say, the head of OSHA can be criminally prosecuted for the COVID vaccine mandate? Examples are plentiful, almost certainly at every agency in existence.
The result would be that all government actors would have to be extremely hyper-cautious about everything they do, more extremely than most people can probably even imagine. Like you say, a few Libertarians would be cool with making them have to be extremely hyper-cautious (because it gets closer to a world where they do literally nothing), but almost no one else is. Even judges have absolute immunity for their official acts, for much the same reason. There was basically zero chance going into this case that the Court was going to find that the President has zero immunity whatsoever for absolutely all official acts; the only real questions were how much immunity (absolute, qualified, some other construct?) and where the lines were drawn. Official v. nonofficial was one obvious place to draw at least one line, and the three-part division they settled on is perhaps not perfect, but it's at least in the right ballpark. It's definitely approximately along the lines of what I was expecting going in.
ControlsFreak
2yr ago
This is very plausible, though I think the traditional answer in the US is that the primary mechanism of accountability and respect for democratic norms is political, i.e., impeachment. There are tradeoffs in using political mechanisms vs. criminal law mechanisms, for sure. A complete discussion of those tradeoffs is probably even bigger than the 500000 character limit of a mottepost and would require significant engagement with an extremely large body of centuries worth of political theorizing. I don't think there is currently a singular tome in existence that is generally regarded as the 'bible' of this topic.
ControlsFreak
2yr ago
I don't have a clean singular cite for that as sort of a solitary claim, sorry. Perhaps it's even something that I'm somewhat wrong about, but it's my impression from reading a variety of things over time about factional struggles for political power via means of raw power, consolidation of authoritarian power from opposition, things like the "rules for dictators", and all sorts of little pieces of work about why different sorts of governments came to be historically (things like whether a society is agrarian and what types of crops are dominant) and what the different end goals are of different uses of raw military power are and such (e.g., do you want to directly take control of governance, do you want to set up a puppet government, do you want to just displace people, etc.). These are unfortunately probably often treated separately in specialized academic works.
ControlsFreak
2yr ago
I expect that a drug user given the choice between, at equal price per dose, pharmaceutical opiods and shit put together in Mexican lab with random Chinese ingredients and cut with God-knows-what, would choose pharmaceutical opiods. However, I would not expect a black market to reliably give that choice. Black markets tend to have a major problem with fraud.
Has there been a whole lot of fake Oxy pills? I imagine it would be a bit challenging to make high-quality counterfeits. I imagine there would probably be some fraud around the edges; hell, people can go on Amazon today, a totally white-looking market, and order regular products from China that turn out to be fraudulent. But my sense is that if we truly turned up the dial on dumping pharmaceutical opioids into the streets, then the prices would plummet, and we'd only have small amounts of fraud around the edges (why go to great lengths to make counterfeits when supply is plentiful and prices are cheap?). Why wouldn't that be the case?
ControlsFreak
2yr ago
The Sacklers were ultimately responsible for and made substantial profits from a legal and corporate structure that heavily encouraged and even induced addiction in cases where it wasn't necessary.
How so?
ControlsFreak
2yr ago
If the only thing stopping POTUS from assassinating his political rivals is the threat that his own Attorney General is going to prosecute him for the crime, then we were already in a world where authoritarian dictatorship was inevitable. Any such POTUS that has consolidated enough political power to even consider such an option would clearly have a strong enough political ally as AG to not prosecute him.
In general, they say that coups aren't often the birth of a new distribution of power; they're the sudden realization (as in "being made real" not "people mentally realize") of what the distribution of power actually was already. Think Saddam Hussein publicly executing opposing members of parliament (there's a crazy video on youtube of that day if you have an odd curiosity to see how exactly these things can go down). It is wholly irrelevant whether or not a correct interpretation of Iraqi law made this a criminal offense. He had the power; he had the allies; anyone who could have plausibly prosecuted him for the offense was either already confirmed as an ally, already targeted, or at least wasn't stupid enough to have not gotten the message. The types of considerations that could actually constrain such a political actor's actions are just entirely different in type.
There are a variety of hypos that are within the domain of, "This is a possible problem that can arise in situations where everything is not already a lost cause and where having a different rule could actually make a difference," but this one isn't in that domain (it fails the first test).
Josh Blackman reminds us to look "long" backwards when we're taking "The Long View"
Here, looking "long" is still less than a decade. I've been thinking/saying a lot about the legal response to Trump and how many attempts would eventually come back once people take the long view and get past a specific attempt to 'get Trump'. For example, I continue to believe that Trump has a First Amendment defense to the claimed FECA violation that allowed NY prosecutors to bootstrap a misdemeanor charge into a felony, if only the defense is allowed to be vigorously pursued in the courts of appeals and if those courts take the long view of why we have the boundaries in law that we have. Josh Blackman points out how SCOTUS has already, tangentially, repudiated a prior attempt to 'get Trump' by taking the long view and looking at the issues from a high level in a case that still directly involves Trump, but where the connection doesn't immediately jump out and hit you in the face until you see it. But once you see it, you can't unsee it. It's the rare example of one small, discrete observation unmistakably changing the frame of issues past, and it's one that I think will ultimately be part of the history books for how we look back on the events that transpired.
The case is the very recent Trump v. United States, which was much commented on for its judgments on presidential immunity as relates to separation of powers and Scalia's The Executive Power (I can't find a way to directly link to the dissent). Many aspects of the case have been dissected, mostly with forward-looking analysis of what a President may do in the future, but this little nugget reminds us to look back to the beginning of the Trump Presidency and the Mueller Report. Remember that? It was viewed as a huge disappointment, with part one of the two-part volume pursuing any Trump-Russia 'collusion' mostly being seen as coming up empty. But even then, many folks tried to rally around part two, which focused on whether Trump obstructed justice by threatening to fire Acting AG Rod Rosenstein or by actually firing FBI Director Jim Comey.
Blackman points out that in light of Trump v. United States, the entire premise of this part two, all of the investigative work that went into it, all of the hoopla around whether it was enough to take down Trump, all of the effort to put forth a plausible case was all completely wasted and would have been nipped in the bud in hindsight had we had the appropriate long view. Directing subordinate Executive branch officials, firing them if desired, and wielding absolute prosecutorial discretion is a 'core' part of The Executive Power, and the President has unrestricted power and absolute immunity in such actions. "If Chief Justice Roberts is correct, Mueller should have never been appointed in the first instance," Blackman says.
I'm sort of kicking myself for not noticing on my own. Blackman views it as a microcosm of the "lawfare" that has been waged against Trump, serious legal challenges, taken seriously by essentially everyone, perhaps even remarkably close to actually taking him down from the Presidency, yet upon further reflection leaves one thinking the whole matter is actually a relatively trivial case of, "What were we even thinking?! What in the world were we doing?!" I tend to agree. I've definitely gotten caught up from time to time in the minutia of one of the cases, what the probabilities are of different outcomes, how subtle changes of analysis could affect the result, and when/if courts might look back and repudiate what may ultimately even be a successful attempt to 'get Trump' with legal cases. It never feels good to think, "They might actually win the battle, but ten years from now, when it doesn't matter anymore, courts will probably vindicate what was right all along." So, I'm going to try to enjoy the pleasant surprise that only seven years later, before Trump has actually 'got got' by one of these shaky things, the highest court in the land has actually taken the long view and essentially said that at least one of these attempts, perhaps one of the most serious of them, was fundamentally misguided and should have been entirely cast aside before any effort went into the details and minutia of the case.
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