For your delectation and delight, desultory dicta on the law of delicts.

Autobiographical Revelations of Justice Clarence Thomas

July 29th, 2010

In My Grandfather’s Son, Justice Thomas uses autobiography to explain and defend his views on affirmative action, and to settle some personal and political scores.  Obviously, Justice Thomas focuses on Anita Hall’s accusations, which were leaked by the Senate Judiciary Committee, and then made the focus of that Committee’s reconvening.  Politicians and journalists who treated Thomas shabbily are called out, and others who helped and supported him, such as Senator Danforth, are hailed.  What would be the point of writing an autobiography if not to settle old scores, and to advance one’s own narrative of events?

Some of the Justice’s targets are surprising.  There is a not much good that Thomas finds to say about the Yale Law School.  In Thomas’ view, Yale’s affirmative action program devalued his accomplishments, both before arriving at Yale, and since leaving.

Interestingly, Thomas candidly reveals that he drank to excess, while an undergraduate at Holy Cross, as a law student, at Yale, and through his first marriage, its dissolution, and its aftermath.  When the FBI interviewed Thomas, and asked him about the use of illegal drugs (marijuana), Thomas answered that he “did not recall,” because he may have tried marijuana while intoxicated by alcohol at college.  Thomas does not discuss whether drinking after law school, and especially after his separation and divorce, ever affected his judgment or recall of events, which are the subject of Hill’s allegations.

For tort lawyers, Thomas’ autobiography holds another surprise:  the extent to which he engages in non-evidence-based accusations against medications and chemicals.  For a while, Thomas worked in the legal department of Monsanto Corporation, but he was unsettled by defending the company’s chemicals, which he believed were so dangerous to humans.  Thomas reached this judgment by his own reading internal company animal studies. 

Elsewhere in his autobiography, Thomas describes a worker who experienced hemiparalysis, which was attributed to a stroke, but which he believed was the result of creosote exposure.  Thomas refers back to studies he believed he saw on the “neurotoxicity” of creosote, which can cause just this sort of neurological damage.  Thomas is rather vague about the sources for his belief that cresote would cause hemiparalysis, which would be a remarkable outcome for such an exposure.  Later in his autobiography, Thomas describes the death of his grandfather, who had worked so hard to help him achieve his successes.  His grandfather, whom he called “Daddy,” died of a stroke.  Thomas suggests that the stroke resulted from Daddy’s use of a cough-cold remedy, and other medications he was taking.  Elsewhere, however, Thomas describes Daddy as having been a smoker, and as having had a diet of fried and fatty foods.  Thomas does not comment whether his grandfather had been diagnosed with high blood pressure, but the diet and lifestyle described certainly provided ample risk factors for a stroke. 

Somehow Thomas’ attribution of causality for his grandfather’s stroke seems fanciful, although perhaps we can excuse his thinking as having been muddled by his emotion.

I suppose most readers will focus on, and pick apart, the narrative about Anita Hill, but I found Thomas’ views about medical causation more interesting and disturbing because they were asides that seemed not to fit within the narrative, and because they were so thoroughly devoid of scientific basis or reasoning.  The inclusion of these judgments about medical causation was more concerning to me than his bitter criticisms of “liberals,” but perhaps that is just me.

A Walk on the Wild Side

July 16th, 2010

The International Commission on Occupational Health (ICOH) is a group that advocates for workers’ health and safety.  How could anyone be against workers’ health and safety?  Still, the group is known for its left-of-center politics, and so it was not the most likely forum for a lawyer who has worked mostly on the defense side of products liability cases.

Last month, the ICOH sponsored its fourth international meeting on the history of occupational and environmental health.  Professor Rosner, an historian who has been frequently listed as an expert witness in silicosis cases, was slated to speak.  Last year, Rosner and his co-author, Gerald Markowitz, published three articles, largely repetitive, in which they called me out on my failure to appreciate the true method and meaning of historians’ scholarship.  The ICOH meeting featured a workshop on historical methodology, along with numerous presentations from historians who specialize in occupational history.  I decided I would attend to see whether I truly needed remedial education, and whether I had unfairly criticized Professor Rosner’s work on silicosis.  Additionally, I decided I would present a paper on the role of historians in product liability cases, to subject my ideas to feedback, criticism, and comment from a wider audience.  And so John Ulizio and I submitted an abstract, “Courting Clio,” to the ICOH, for its conference on the history of occupational and environmental health.  To our surprise, the abstract was accepted for a platform presentation.

The first day of the ICOH conference was a workshop on historical method.  The presentations was comforting in that they mostly confirmed my understanding of what historians do.  One historian directly analogized historical scholarship to what lawyers do in terms of collecting and marshalling evidence, and drawing inferences to conclusions.  The presenters also confirmed what I had perceived to be the dangers of historian expert witnesses – they admitted their overriding interest in assessing character, allocating blame, and in advocating change.  My criticisms of Rosner and Markowitz, as “Histrionic Historians,” stands.

The presenters also, indirectly acknowledged, their substantial biases.  There were at least 4 or 5 references to Professor Bartrip (Wolfson College, Oxford University) during the methodology workshop.  Each reference included a mention of his having been paid an exorbitant sum (100k pounds or so) to write a history of Turner & Newall’s involvement in the asbestos business.  There were no comments about the quality or reliability of Bartrip’s work, and there were no comments about biases of authors who turn out Marxist and radical histories, funded by consulting and testimonial services they provide to lawyers for claimants.  (The presenter on historiography classified Rosner’s work as lying in the “Marxist and radical” camp.)  The only potential bias singled out was the economic sort that allowed Bartrip’s work to be marginalized and dismissed by the speakers.

The Workshop was thus informative and valuable.  The remainder of the conference was, however, uneven.  Some of the presentations were highly insightful about the determinants of occupational health in the past.  Rosner and Markowitz gave one of the keynote presentations, at which they sang and danced.  (“Silicosis is Killin’ Me” – Josh White; “More than a Paycheck” – Sweet Honey in the Rock)  Despite the entertainment, there was little new in their presentations.

On the last day of the conference, I gave my presentation, “Courting Clio.”  I focused on the confluence of changes in science and the law, which created a need to litigate issues of sellers’ and workers’ knowledge from decades before workers developed the diseases or conditions that are the subject of their legal claims.  I pointed out that there were instances in which juries could be assisted by historian expert witnesses, and other instances, in which historians wasted the time of the Court, the jury, and litigants.

Professor Rosner was in the audience, and he grabbed the microphone as soon as I finished.  Indeed, he monopolized the Q&A session with a rant that included a recitation of how well reviewed his book, Deadly Dust, was.  Rosner suggested that he must be very effective at helping workers attain just outcomes if I were so animated against his participation in the legal process.  At times, Rosner was incoherent, although he ended his rant by calling me “despicable,” which led the moderator, Professor Melling, to apologize for  Rosner’s ad hominem excesses.  I did have a minute in which to respond to Rosner, in which I asked rhetorically whether he thought that the widespread screening fraud in silicosis litigation was also despicable, or whether it was despicable to turn a common law courtroom into a circus of historians on their soapboxes.

Rosner’s conduct does not need apologies; it simply needs to be excluded from the courtroom.  If I could have put an exhibit marker on Rosner’s forehead, I would have adduced him as physical evidence in support of my argument.  Quod erat demonstratum.