The Art of Lawfare and Litigation strategy

by [anonymous] 4y17th Dec 201514 comments

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Bertrand Russell, well aware there were health risks of smoking, defended his addiction in a videotaped interview. See if you can spot his fallacy! 

Today on SBS (radio channel in Australia) I heard reporters breaking the news that Nature article reports that Cancer is largely due to choices. I was shocked by what appeared to be gross violations of cultural norms around the blaming of victims. I wanted to investigate further since science reporting is notoriously inaccurate.

The BBC reports:

Earlier this year, researchers sparked a debate after suggesting two-thirds of cancer types were down to luck rather than factors such as smoking.

The new study, in the journal Nature, used four approaches to conclude only 10-30% of cancers were down to the way the body naturally functions or "luck".

"They can't smoke and say it's bad luck if they have cancer."

-Dr Yusuf Hannun, the director of Stony Brook

-http://www.bbc.com/news/health-35111449

The BBC article is roughly concordant with the SBS report. 

I've had a fairly simple relationship with cigarettes. I've smoked others' cigarettes a few times, while drinking. I bought my first cigarette to try soon after I turned of age and discarded the rest of the packet. One of my favourite memories is trying a vanilla flavoured cigar. I still feel tempted to it again whenever I smell a nice scent, or think about that moment. Though now, I regularly reject offers to go to local venues and smoke hookah. Even after my first cigarette, I felt the tug of nicotine and tobacco. Though, I'm unusually sensitive to eve the mildest addictive substances, so that doesn't suprise me in respective. What does suprise me, is that society is starting to take a ubiquitous but increasingly undeniable health issue seriously despite deep entanglement with long standing way of doing things, political ideologues, individual addictions and addiction-driven political behaviour and shareholder's pockets.

Though the truth claim of the article isn't that suprising. The dangers of smoking are publicised everywhere. Emphasis mine:

13 die every day in Victoria as a result of smoking.

Tobacco use (which includes cigarettes, cigars, pipes, snuff, chewing tobacco) is the leading preventable cause of death and illness in our country. It causes more deaths annually than those killed by AIDS, alcohol, automobile accidents, murders, suicides, drugs and fires combined.

So I decided to learn more about the relationship between society and big tobacco, and government and big tobacco to see what other people interested in influencing public policy and public health can learn (effective altruism policy analytics, take note!) about policy tractability in suprising places.

Here's what might make for tractable public policy for public health interventions

Proof of concept

Governments are great at successfully suing the shit out of tobacco. And, big tobacco takes it like a champ:

It started with United State's states experimenting with suing big tobacco. Eventually only a couple of states hadn't done it. Big Tobacco and all those attorney generals gathered and arranged huge ass settlement that resulted in the disestablishment of several shill research institutes supporting big tobacco and big payouts to sponsor anti-smoking advocacy groups (which seem politically unethical, but consequentially good, but I suppose that's a different story). However, what's important to note here is the experimentation within US states culminating with the legitimacy of normative lawfare. It's called 'Diffusion theory' and is described here.

Wait wait wait. I know what you're thinking, non-US LessWrongers - another US centric analysis that isn't too transportable. No. I'm not American in any sense, it's just that the US seems to be a point of diffusion. What's happening regarding marajuana in the US now seems to mirror this in some sense, but it's ironically pro-smoking. That illustrates the cause-neutrality of this phenomenon.

That settlement wasn't the end of the lawfare:

On August 17, 2006, a U.S. district judge issued a landmark opinion in the government's case against Big Tobacco, finding that tobacco companies had violated civil racketeering laws and defrauded consumers by lying about the health risks of smoking.

In a 1,653 page ruling, the judge stated that the tobacco industry had deceived the American public by concealing the addictive nature of nicotine plus had targeted youth in order to get them hooked on cigarettes for life. (Appeals are still pending). 

Victims who ask for help

I also stumbled upon some smokers attitudes to smoking and their, well, seemingly vexacious attitudes to big tobacco when looking up lawsuits and big tobacco. Here's a copy of the comments section on one website. It's really heartbreaking. It's a small sample size but just note their education too - suggesting a socio-economic effect. Note, this comments were posted publicly and are blatant cries for help. This suggests political will at a grassroots level that is yet under-catered for by services and/or political action. That's a powerful thing, perhaps - visible need in public forums addressed to those that are in the relevant space. Note that they commented on a class action website.

http://s10.postimg.org/61h7b1rp5/099090.png

 

Note some of the language:

 

"I feel like I'm being tortured"

You don't see that kind of language used in any effective altruism branded publications.

Villains

Somewhat famous documents exposing the tobacco industries internal motivations and dodginess seem to be quoted everywhere in websites documenting and justifyications of lawfare against the tobacco industry. Public health and personal dangers of smoking don't seem to have been the big catalyst, but rather a villainous enemy. I'm reminded of how the Stop the boats campaign which villainised people smugglers instead of speaking of the potential to save lives of refugees who fall overboard shitty vessals. I think to Open Borders campaigners associated with GiveWell's Open Philanthropy Project, the perception of the project as just about the most intractable policy prospect around (I'd say a moratorium on AI research is up there), but at the same time, non identification of a villain in the picture. That's not entirely unsuprising. I recall the hate I received when I suggested that people should consider prostituting themselves for effective altruism, or soliciting donations from the porn industry where donors struggle to donate since many, particularly relgious charities refuge to accept their donations. Likewise, it's hard to get rid of encultured perceptions of what's good and what's bad, rather then enumerating ('or checking, as Eleizer writes in the sequence) the consequences.

Relative merit

This is something Effective Altruist is doing.

William Savedoff and Albert Alwang recently identified taxes on tobacco as, “the single most cost-effective way to save lives in developing countries” (2015, p.1).

...

Tobacco control programs often pursue many of these aims at once. However, raising taxes appears to be particularly cost-effective — e.g., raising taxes costs $3 - $70 per DALY avoided(Savedoff and Alwang, p.5; Ranson et al. 2002, p.311) — so I will focus solely on taxes. I will also focus only on low and middle income countries (LMICs) because that is where the problem is worst and where taxes can do the most good most cost-effectively.

..

But current trends need not continue. We can prevent deaths from tobacco use. Tobacco taxation is a well-tested and effective means of decreasing the prevalence of smoking—it gets people to stop and prevents others from starting. The reason is that smokers are responsive to price increases,provided that the real price goes up enough

...

Even if these numbers are off by a factor of 2 or 3, tobacco taxation appears to be on par with the most effective interventions identified by GiveWell and Giving What We Can. For example, GiveWell estimates that AMF can prevent a death for $3340 by providing bed nets to prevent malaria and estimates the cost of schistosomiasis deworming at $29 - $71 per DALY.

 

There are a few reasons to balk at recommending tobacco tax advocacy to those aiming to do the most good with their donations, time, and careers.

 

  • Tobacco taxes may not be a tractable issue
  • Tobacco taxes may be a “crowded” cause area
  • Unanswered questions about the empirical basis of cost-effectiveness estimates
  • There may not be a charity to donate to
...
Smoking is very harmful and very common.  Globally, 21% of people over 15 smoke (WHO GHO)

 

-https://www.givingwhatwecan.org/post/2015/09/tobacco-control-best-buy-developing-world/

 

Attributing public responsibility AND incentivising independently private interest in a cause


The Single Best Health Policy in the World: Tobacco Taxes

The single most cost-effective way to save lives in developing countries is in the hands of developing countries themselves: raising tobacco taxes. In fact, raising tobacco taxes is better than cost-effective. It saves lives while increasing revenues and saving poor households money when their members quit smoking.

-http://www.cgdev.org/publication/single-best-health-policy-world-tobacco-taxes)

 

Tobacco lawsuits can be hard to win but if you have been injured because of tobacco or smoking or secondary smoke exposure, you should contact an attorney as soon as possible.

  If you have lung cancer and are now, or were formerly, a smoker or used tobacco products, you may have a claim under the product liability laws. You should contact an experienced product liability attorney or a tobacco lawsuit attorney as soon as possible because a statute of limitations could apply. 

-http://smoking-tobacco.whocanisue.com/

There's a whole bunch of legal literature like this: http://heinonline.org/HOL/LandingPage?handle=hein.journals/clqv86&div=45&id=&page=

that I don't have the background to search for and interpret. So, if I'm missing important things, perhaps it's attributable to that. Point them out please.

So that's my analysis: plausible modifiable variables that influence the tractability of the public health policy initiative: 

(1) Attributing public responsibility AND incentivising independently private interest in a cause

(2) Relative merit

(3) Villains

(4) Victims that ask for help

(5) Low scale proof of concept

Remember, lawfare isn't just the domain of governments. Here's an example of non-government lawfare for public health. They are just better resourced, often, than individuals. They need groups to advocate on their behalf. Perhaps that's a direction the Open Philanthropy Project could take. 

I want to finish by soliciting an answer on the following question that is posed to smokers in a recurring survey by a tobacco control body:

Do you support or oppose the government suing tobacco companies to recover health care costs caused by tobacco use?

Now, there may be some 'reverse causation' at play here for why Tobacco Control has been so politically effect. BECAUSE it's such a good cause, it's a low hanging fruit that's already being picked. 

What's the case for or against this?


The case for it's cause selection: Tobacco control


Importance: high


tobacco is the leading preventable cause of death and disease in both the world (see: http://www.who.int/nmh/publications/fact_sheet_tobacco_en.pdf) and Australia (see: http://www.cancer.org.au/policy-and-advocacy/position-statements/smoking-and-tobacco-control/)


‘Tobacco smoking causes 20% of cancer deaths in Australia, making it the highest individual cancer risk factor. Smoking is a known cause of 16 different cancer types and is the main cause of Australia’s deadliest cancer, lung cancer. Smoking is responsible for 88% of lung cancer deaths in men and 75% of lung cancer cases in women in Australia.’


Tractable: high


The World Health Organization’s Framework Convention on Tobacco Control (FCTC) was the first public health treaty ever negotiate.


Based on private information, the balance of healthcare costs against tax revenues according to health advocates compared to treasury estimates in Australia may have been relevant to Australia’s leadership in tobacco regulation. That submission may or may not be adequate in complexity (ie. taking into account reduced lifespans impact on reduced pension payouts for instance). There is a good article about the behavioural economics of tobacco regulation here (http://baselinescenario.com/2011/03/22/incentives-dont-work/)



Room for advocacy: low


There are many hundreds of consumer support and advocacy groups, and cancer charities across Australia.


Room for employment: low?


Room for consulting: high

 

The rigour of analysis and achievements themselves in the Cancer Council of Australia annual review is underwhelming, as is the Cancer Council of Victoria’s annual report. There is a better organised body of evidence relating to their impact on their Wiki pages about effective interventions and policy priorities. At a glance, there appears to be room for more quantitative, methodologically rigorous and independent evaluation. I will be looking at GiveWell to see what I recommendations can be translated. I will keep records of my findings to formulate draft guidelines for advising organisations in the Cancer Councils’ positions which I estimate by vague memory of GiveWell’s claims are in the majority in the philanthropic space.

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