Cross-posted from ACSblog.
The Center for Progressive Reform (CPR) today released a white paper examining "plausibility pleading"-the Supreme Court's heightened pleading standard that plaintiffs must satisfy in order to bring their claims in federal court. The paper, Plausibility Pleading: Barring the Courthouse Door to Deserving Claimants, comes after the Court's decision one year ago this week in Ashcroft v. Iqbal that this standard applies to all types of federal cases. The Court first created this standard in Twombly v. Bell Atlantic, three years ago.
Iqbal and Twombly will lead to the dismissal of meritorious cases, thereby weakening the civil justice system and making it more difficult to hold businesses or the government accountable for wrongful actions. Increased dismissals will also deprive federal regulators of vital information needed for improving the regulations that protect people and the environment. Our paper therefore calls on Congress to pass legislation to reverse these decisions.
The pleading standard plays an important role in civil litigation. Would-be plaintiffs unable to draft a complaint that satisfies the pleading standard aren't able to bring their case before a judge or jury in federal court. If the pleading standard is too lenient, too many non-meritorious cases will be able get into court, clogging up the federal judiciary. But if the standard is too high, meritorious cases will be terminated early, denying justice to deserving plaintiffs.
Full textThe Workforce Protections Subcommittee of the House Education and Labor Committee held a hearing Tuesday on the Protecting America’s Workers Act of 2009, legislation that would, among other reforms, modernize workplace health and safety penalties. More than a decade ago, I testified at a similar hearing in the House of Representatives on the same subject. The need for stronger OSHA penalties was apparent then, and it is no less apparent today.
The hearing is memorable to me because I testified along with a father whose son was killed on a construction site while working at a summer job between years of college. His son was working on one of the floors of a multi-story building under construction. He was asked to carry some construction materials across the floor of the building from one side to the other. He piled up the materials in his arms with the result that he could not see clearly in front of himself. When he walked across the floor, he stepped into the hole that was the elevator shaft, falling to his death at the bottom. The contractor had not put up a barricade around the hole in the floor, as it was required to do in order to prevent just such accidents.
OSHA has done much good; workplaces are safer than they were at the time that the agency was founded. But one does not have to look very far to find stories like the one told that day at the hearing. Workers continue to be killed and seriously injured in accidents related to OSHA violations.
Full textWhen my children were growing up, they loved the “Where’s Waldo” book series. Each page had an illustrated picture chock full of people and objects; hidden somewhere among the mass of detail was a small picture of a cartoon character named Waldo. When the Toyota Motor Corporation announced this week that it was stopping the production and sales of several of its car models because of a dangerous problem with unintended acceleration, we had a “Where’s Waldo” scenario. The National Highway Safety Administration (NHTSA), the regulator which is supposed to protect the American public from this sort of event, is nowhere to be seen, hidden inconspicuously in the background, hard to spot because of its disturbingly minor role in the unfolding events.
As I wrote earlier, Toyota had previously announced that it would replace the accelerator pedals on about 3.8 million vehicles in the United States because the pedals could get stuck in a floor mat. In the meantime, Toyota advised owners to remove the mats to avoid the problem. But, as I also noted, there were reports of cars accelerating when there were no floor mats involved. Until its most recent action, Toyota resisted this claim, blaming the problem on the design of the accelerator, and planning to address the problem by installing a redesigned accelerator that would not become entangled in a floor mat. For the first time, the company said it might be possible that there was an acceleration problem that had nothing to do with the floor mat, although, with an eye on minimizing potential lawsuits, the company also said that if there was a problem, it was a rare one.
When the Washington Post called NHTSA for comment, it initially refused, maintaining its Waldo-like appearance. The agency has since opened up, arguing in articles appearing today that it has been pressuring Toyota on the issue. It's troubling, though, that it took so long for the broader recall to be instituted and for the new sales to be halted.
Full textAs reported in a post Saturday, OMB has become the epicenter for industry efforts to head off an EPA regulation concerning coal ash. There have been 17 meetings between industry interests and OMB officials. When questioned about the large number of meetings, an OMB spokesman said, "This has been a very regular, very normal deliberative process on a very complex rule.” For progressives who had hoped that OMB in the Obama administration would not replicate OMB in the Bush administration, this is disappointing news.
Industry swarmed to OMB after EPA had submitted a draft rule on coal ash to OMB for its approval. Under a presidential order, agencies like EPA must submit significant new regulations, like the coal-ash rule, to the White House for review prior to the time that they are officially proposed. Unhappy that their efforts to persuade EPA to propose a different rule had not worked, industry groups went to the White House to get the draft rule rewritten. The industry tactic is time-honored. In Republican administrations, OMB opened its door to industry interests, and it regularly intervened to force agencies to weaken regulatory proposals. Public interest groups have been watching OMB in the Obama administration to see if this practice might change.
James Goodwin, a CPR analyst, was one of the first to draw attention to OMB’s multiple meetings concerning the coal ash rule. Goodwin also found that OMB was regularly meeting with industry groups on other issues, but seldom meeting with public interest groups. CPR’s president, Rena Steinzor, has written OMB objecting to this unbalanced approach.
Full textThe Concord Monitor has identified a New Hampshire factory (Franklin Non-Ferrous Foundry) that has been the subject of previous OSHA investigations and fines, yet continues to expose its workers to dangerous conditions. OSHA’s most recent fine, $250,000, came after the agency found that a worker had high levels of lead in his blood. The newspaper obtained OSHA documents that revealed a pattern of violations by the company. The New Hampshire case is a troubling reminder of how weak OSHA is -- and of how that weakness puts many workers at danger in this country today.
OSHA has cited the foundry for 57 violations over the last four years, including 25 “serious” violations, which means the violation has potential to kill or seriously harm an employee. The violations included exit doors that could not be opened from the inside without keys or tools. OSHA inspectors also found that employees who were pouring molten metal were protected by heat shields with "large holes" in the front, while other workers wore no protective clothing even though they were working only inches from materials bubbling at 2,300 degrees. The foundry’s employees were exposed to airborne concentrations of copper dust nearly six times higher than OSHA regulations permit. And the inspectors observed an employee climb on the top railing of a series of catwalks along the factory ceiling to look at damaged machinery below without any fall protection equipment, another OSHA violation.
In 2006, OSHA fined the business $387,000 in penalties, and after a follow up investigation in 2007, it levied another $17,000 in penalties. The owner of the foundry has contested the latest fine and expressed skepticism about the dangers posed by lead. OSHA refused to divulge to the newspaper whether the foundry paid any of the earlier fines, and if so, what amount. OSHA, however, often settles cases for pennies on the dollar.
Full textThis morning, Toyota Motor Corporation announced it intends to replace accelerator pedals on about 3.8 million recalled vehicles in the United States because the pedals can get stuck in a floor mat. But the recall could still leave more than a million faulty cars on the road.
As I wrote earlier, there had been over 2,000 reports from the owners of Toyota cars that they have surged forward without warning reaching speeds of up to 100 miles per hour. NHTSA has investigated Toyota for runaway cars on eight separate occasions, but the agency only ordered two small recalls, which addressed floor mats and carpet panels. It is not apparent why the agency did not act more forcefully, and Congress should investigate that.
A problem with relying on recalls, as NHTSA often does to correct safety defects, is that not all vehicle owners will have the cars and trucks fixed. NHTSA indicates that the overall effectiveness of recalls is about 72%, which means Toyota will not fix about 1.1 million cars, assuming the average recall rate applies.
This is one reason why it is better if NHTSA requires manufacturers to design safe cars rather than waiting for defects to show up and instituting a recall. But this strategy does not work if the agency cannot anticipate a problem or it lacks the political will to issue a regulation for a problem that it does recognize. Congress should dig into this.
Full textThe National Highway Traffic Safety Administration (NHTSA) recently chastised the Toyota Motor Company for claiming that no defect existed in its cars, even while recalling 3.8 million of them. Toyota instituted the recall one month after a Lexus sedan suddenly accelerated out of control killing four people near San Diego. When Toyota blamed the problem on improperly installed floor mats, NHTSA said it expected the company to provide a “suitable vehicle solution.” The company then said that it was working on “vehicle-based remedies” for the problem.
Government regulators have two methods of promoting safer cars. NHTSA can adopt binding regulations requiring car manufacturers to adopt safety equipment, such as airbags. But Congress also authorized the agency to order a company to recall defective cars. In light of this authority, companies will voluntarily engage in a recall, as Toyota has done. According to news reports, there had been over 2,000 reports from the owners of Toyota cars that they have surged forward without warning reaching speeds of up to 100 miles per hour. NHTSA has investigated Toyota for runaway cars on eight separate occasions, but the agency only ordered two small recalls, which addressed floor mats and carpet panels. According to news reports, NHTSA has identified potential design defects in Toyota cars. Toyota maintains it was given a clean bill of health by the agency except for the floor mat problems.
Full textHow’s this for any irony? David Michaels, President Obama’s nominee to head the Occupational Safety and Health Administration (OSHA), has written a book, published by Oxford University press, documenting how industry manufactures doubts that chemicals harm people by accusing regulators and plaintiff lawyers of relying of “junk science” instead of “sound science.” Now, after Michaels has exposed this effort as a public relations campaign that mischaracterizes how science actually works, he is being attacked on the grounds, you guessed it, of favoring junk science. And, because he favors “junk science,” he must be, you guessed it, a “radical.”
Michaels, an epidemiologist and research professor at the School of Public Health and Health Services at George Washington University, notes that the “sound science” campaign originated with the tobacco industry’s efforts to stave off regulation and tort suits by attacking the science indicating that smoking kills you. It has since been taken up by anyone with a financial interest in avoiding regulation or being sued for exposing people to toxic substances.
The sound science campaign depends on three ideas that appear reasonable enough on their face, but constitute sophisticated sabotage in their operation.
Full textThis is one of two posts today by CPR member scholars evaluating NY Gov. David Paterson's recent executive order on regulations; see also Rebecca Bratspies' post, "Paterson's Executive Order: Win for Industry, Loss for Public Health and Safety."
Who knew? With his newly announced plan to require New York departments and agencies to look back at proposed and existing regulations, Governor Paterson placed himself squarely in the anti-regulatory tradition of Ronald Reagan, George H.W. Bush, and George W. Bush. Like Governor Paterson, these presidents created a look-back process to identify regulations that they said needed to be reformed. The history of White House look-backs suggest the New York is at a minimum misguided and could well be harmful to New York residents.
Shortly after being elected, President Reagan created the Task Force for Regulatory Relief, headed by then Vice-President George Bush, to create a list of regulations that were the most burdensome on business. As the name implies, the goal was not to strengthen regulatory protections. Facing reelection, the first President Bush announced a 90-day moratorium on new regulations and required regulatory agencies to undertake a look back. Given the timing, the plan appeared to be an effort to curry favor with conservatives and the business community, which is Governor Paterson’s motive, according to his critics. The second President Bush invited the public to send requests to the White House for regulatory revisions, which it passed on to the agencies, a process that was heavily dominated by requests from business interests.
Governor Paterson defended his plan as a way to reduce “red tape,” a typical ploy of regulation opponents. Because government needs information to adopt regulations and then to enforce them, it requires regulated entities to fill out forms. To those filling out the paperwork, this can appear to be government run amok, and sometimes it is. But most of the time it is not. Regulated entities have ample opportunity to point out to departments and agencies that reporting requirements are unnecessary before they are put in place, and there is no proof that government usually adopts them anyway. Still, if the Governor’s plan had been limited to reducing paperwork requirements, it would not be so alarming. But the plan isn't just about reducing paperwork, it's about changing -- weakening -- regulations.
Full textLike Alice's adventure, the development of regulatory oversight in the Obama administration is becoming "curiouser and curiouser." President Obama selected Cass Sunstein to be the head of the Office of Information and Regulatory Affairs (OIRA), a curious choice since Sunstein, although one of the country’s most distinguished academics, is in favor of extending the use of cost-benefit analysis, a position so popular with the business community that the Wall Street Journal endorsed his nomination. Sunstein's confirmation hearing was uneventful, probably because he avoided answering any difficult questions, but Sunstein's nomination is now being held by Senator John Cornyn, who objects to Sunstein's previous statements on animal rights -- an issue that the head of OIRA is highly unlikely to encounter.
In the meantime, the development of a new Executive Order on regulatory impact analysis has had its own curious journey. The new administration invited public comment on shaping the executive order, an unprecedented and welcome development. The administration also sought the input of agencies, although it has not made their comments public. That's defensible -- Presidents defend such secrecy as necessary to ensure that subordinates will be candid in giving advice -- but the administration missed an opportunity to fulfill its pledge to be more transparent since it is unlikely that agencies would have been affected had the comments been disclosed.
To fulfill its transparency commitment, the administration also should have put out a draft Executive Order for public comment. In Republican administrations, OIRA review has been used to scuttle regulation, while OMB in the Clinton administration adopted a more benign attitude towards executive oversight. The ideal outcome would be to replace the current cost-benefit centered review process with a more pragmatic approach, a result CPR board members called for in March. But given Sunstein’s appointment, this outcome would be unexpected (but welcome). If a cost-benefit approach is to be retained, the devil will be in the details, all the more reason to invite public comment on a draft executive order.
