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Federal program for vaccine-injured children is failing, says Stanford Law School professor

Child being vaccinated

Stanford Law School Professor Nora Freeman Engstrom says a no-fault alternative dispute resolution system for resolving vaccine injury claims is not working as intended. (Photo: Image Point Fr/Shutterstock)

This story was written by Clifton Parker of Stanford News Service.

The safety net that Congress created to protect children who suffer from vaccine injury is not working as intended, a Stanford law professor has found.

“The bottom line is that the Vaccine Injury Compensation Program was supposed to offer ‘simple justice’ to vaccine-injured children. But it has largely failed to do so,” wrote Stanford law Professor Nora Freeman Engstrom in a new research article.

Outside the court system

Created by Congress in 1986 as the problem of vaccine injury hit crisis proportions, the Vaccine Injury Compensation Program, or VICP, is a no-fault compensation system housed within the U.S. Court of Claims and funded by a 75-cent tax on each vaccine dose administered across the country.

Vaccines are given to reduce the threat of common diseases, such as measles, chicken pox, smallpox and polio, and they save the lives of tens of thousands of Americans each year. However, vaccines also cause a very small proportion of those inoculated to sustain serious and sometimes fatal injuries, according to Engstrom.

She said the VCIP uses a no-fault alternative dispute resolution system for resolving vaccine injury claims. Known as an “alternative compensation mechanism,” it is similar to workers’ compensation funds or the September 11th Victim Compensation Fund in providing payment to injured individuals outside the traditional court system.

Engstrom, who also recently wrote an opinion piece on this issue, noted the vaccine fund has adjudicated more than 14,000 petitions for vaccine injury since its beginning in 1986. In her research, she analyzed nearly three decades’ worth of data concerning the program’s operation.

“The results are discouraging,” she said. “Despite initial optimism in Congress and beyond that such a fund could resolve claims efficiently and amicably, in operation the program has been astonishingly slow and surprisingly combative.”

For example, Congress originally established a 240-day deadline for all adjudication decisions. But Engstrom reported that, in reality, the average adjudication takes over five years. “This is years longer than similar claims resolved by court judgment or trial verdict within the traditional tort system,” she said.

The tone and nature of the experience is also disillusioning, she noted. Though claims within the system are supposed to be amicably resolved, in reality “the resolution of petitions is frequently antagonistic,” she said.

Engstrom found that even when children are found to be entitled to compensation, governmental lawyers have sometimes hassled petitioners over relatively piddling amounts. For example, in one case, a dispute arose whether a 14-year-old girl with profound mental retardation was or was not entitled to a $40 pair of high-top tennis shoes.

Perhaps as a result, Engstrom said, the vaccine program has heavily relied on lawyers. Early on, some hoped that procedures would be straightforward and collaborative enough to make it unnecessary to hire counsel. But Engstrom discovered that petitioners need counsel – and often highly specialized legal help – to have any chance at successfully resolving their claims.

Lessons learned

Engstrom said her findings serve as a cautionary tale in two aspects. First, child vaccination rates in the United States are lower than they should be, she said, adding, “With the recent measles outbreak, the effects of this comparatively low vaccine rate seem to be coming home to roost.”

Originally, she said, the vaccine compensation program was supposed to represent a simple and effective safety net that would encourage more parents to immunize their children.

Applying that logic, she said, “If we want to convince more American parents to vaccinate their children, improving the VICP could help.”

Second, the findings, she said, shed light on the effectiveness of health courts and other options for resolving disputes beyond traditional courts, which are often suggested as possible solutions to medical malpractice litigation problems.

Engstrom calls health courts the “tort reform du jour.” In fact, legislation to enact health courts has been introduced in several state legislatures and both houses of Congress.

She said health courts would take medical malpractice cases out of the traditional court system and relocate them to a specialized venue. Health court supporters suggest that this relocation would promote faster, more predictable and less adversarial resolutions of disputes.

But Engstrom wrote that the vaccine fund example is cause for great concern: “Moving cases outside the court system in no way guarantees that claim resolution will be fast, simple or straightforward.”

She noted, “Before we charge forward in creating new compensation systems, we ought to make sure we understand how our past experiments with tort reform have fared – and we’ve got to learn the sometimes bitter lessons that come from our past mistakes.”

 

Stanford Law School Hosts First-Ever Global Corporate Governance Colloquium

This story was written by Jacob Hale Russell.

Ronald Gilson at the Global Corporate Governance Conference

Ronald Gilson welcomes business and law professors from around the world to the first Global Corporate Governance Colloquium. Photo by Misha Bruk.

How does a country’s left-right political orientation shape its financial markets? Have activist efforts by hedge funds improved corporate performance? Does requiring boards of directors to have a minimum number of women affect stock prices?

These were a few of the questions discussed at Stanford Law School (SLS) June 5 and 6 by 60 of top corporate governance scholars from around the globe. The unique conference, the first of its kind, included an interdisciplinary mix of business and law professors drawn from as far as the University of New South Wales in Australia and the Stockholm School of Economics, as well as U.S. universities including Harvard, Stanford, Columbia and Yale.

Idea brought to fruition

Ronald Gilson, Charles J. Meyers Professor of Law and Business at SLS, chaired the conference, a new annual project called the Global Corporate Governance Colloquium. The idea was dreamed up by Gilson along with Colin Mayer, dean of Oxford’s Said Business School, and Gerard Hertig of the Zurich Institute of Technology (ETH) in a conversation one afternoon in Oxford three years ago. Academics too often stay in their own silos, and international and interdisciplinary collaboration remains particularly rare in the corporate governance arena, even as corporations act in a global economy.

“The idea was, let’s create the single best global corporate governance conference,” said Gilson. “It’s more clear to everyone that the relevant academic community in this area is global, capital markets are global, but there isn’t an event that pulls together those people who are doing the best work across geographies and disciplines.”

Twelve leading schools are involved in the project – four each from the U.S., Europe and Asia. Stanford Law School was invited to host the first event, and future meetings will rotate among the continents and participating schools.

“We were honored to host this first-of-its-kind conference. Corporations and their lawyers operate in an increasingly global playing field, and this conference provided an international group of the top scholars a chance to break through geographic and disciplinary barriers,” said M. Elizabeth Magill, dean and the Richard E. Lang Professor of Law at SLS.

During the opening session, Gilson noted the appropriateness of hosting the inaugural event in Silicon Valley. “The Global Corporate Governance Colloquium was really an exercise in entrepreneurship in the pure Silicon Valley sense,” he said. “The [project] began with that magic phrase,‘what if.’ Now we’re about three years in, and today is our product launch.”

Five Stanford participants

The program included papers invited from well-known law and economics scholars and others chosen through a juried call for papers. Michael Klausner, the Nancy and Charles Munger Professor Business and Law at SLS, spoke at a lunchtime panel on empirical finance. Three professors from the Stanford Graduate School of Business also took part in the conference.

Klausner’s talk, titled “Take a Lawyer to Lunch (Please),” referenced an academic joke: If law professors want to do economically sophisticated work, they need an economist as a coauthor, but if an economist wants to do legally sophisticated work, they need only take a law professor to lunch.

In reality, Klausner argued, economists and finance scholars – many of whom were represented in the room – often get important legal dimensions wrong in their work. In particular, he critiqued indexes that have attempted to quantitatively rate governance quality. The truth is, he said, the data includes corporate behaviors that have no relationship to the problem of bad governance, which means that empirical studies that rely on those indexes to study the relationship between good governance and good performance are problematic.

Gilson reported that the participants were delighted with the inaugural event. “Sixty academics are rarely unanimous about anything, let alone the quality of a conference, but they were about their two days at Stanford Law School,” he said. The conference will reconvene in 2016 at the Stockholm School of Economics and in 2017 at the University of Tokyo.

Jacob Hale Russell is a lecturer in law and teaching fellow for Stanford Law School’s LLM Program in Corporate Governance and Practice.

Law School Grads Urged to Put Their Training to Work After ‘Hard Year’

Students were elated as they marched in the graduation processional.

Students were elated as they marched in the graduation processional. Photo by GradImages.

In her charge to the Class of 2015 at Stanford Law School’s graduation ceremony on Saturday, June 13, Dean M. Elizabeth Magill readily acknowledged, “This has been a hard year,” but she found reasons for optimism in the students receiving their degrees as she greeted the crowd of around 1,500 gathered in Canfield Courtyard.

She began by welcoming the parents and friends of the 192 students receiving doctor of jurisprudence (JD) degrees and the 75 students receiving advanced degrees. “Thank you for helping make these graduates who they are, thank you for supporting them, and thank you for sharing them with us. They are inspiring and funny and skilled and kind and charming and memorable and talented and smart and wise – all at once. We have been privileged to teach them and we are bursting with pride to be able to call them our graduates,” said Magill, the Richard E. Lang Professor of Law.

Many of those students and the dean herself wore black stoles atop their graduation robes, printed with the “Black Lives Matter” theme of numerous events, classes and programs held at the law school during the past year. It was a topic all of the speakers mentioned, while urging the students to build upon the training, practical experience and sense of community they had shared at the law school in order to tackle the problems that dominated the news in 2014-15.

Barbecue Enthusiast

Pablo Acevedo Alvarez speaks on behalf of the advanced degrees students

Pablo Acevedo Alvarez, LLM ’15, chosen by the international students to speak, emphasized their diversity. Photo by GradImages.

Pablo Acevedo Alvarez, LLM ’15, chosen by the international students to deliver remarks, emphasized the diversity of the international students receiving advanced degrees. “Our graduating class comes from 27 different countries, with different legal backgrounds, different areas of practice, knowledge and accents,” he said. He practiced law for 10 years in his native country, Chile, before fulfilling his dream of studying at Stanford Law School and brought with him a love of barbecuing that he shared with fellow students. They laughed as he recalled “in my country” conversations on topics such as “whether American light beer would qualify as beer in other countries, or what really constitutes a barbeque, an issue very important to me.”

On a more serious note, he said, “Stanford taught us that there are still many things to do in terms of equality, even here in the U.S., where we could see that discrimination and injustice are still living challenges. I invite you, my fellow classmates, to take this critical thinking back home and spread it. We were privileged to be here, and after graduation we have the unique opportunity to give back to the world. Remember that today we become ambassadors of Stanford Law School with our actions, and many eyes will be looking at us.”

First-Ever ‘WikiSpeech’

From left, Ashlee Pinto, Marta Belcher and Michael Mestitz deliver the JD Class of 2015’s crowdsourced “WikiSpeech.”

From left, Ashlee Pinto, Marta Belcher and Michael Mestitz deliver the JD Class of 2015’s crowdsourced “WikiSpeech.” Photo by GradImages.

In their crowdsourced “WikiSpeech,” the JD Class of 2015 said, “We attended law school during some of the most important civil rights struggles of our time,” adding, “We saw the stark contrast of learning about justice in the classroom and, at the same time, feeling hopeless to remedy the injustice we were witnessing across the country and around the world – injustices perpetuated by the people and systems we entrust with upholding the law. Injustices perpetuated by the very system we are about to enter.”

Marta Belcher, JD ’15, said that the Class of 2015 voted to have the WikiSpeech because, “We couldn’t see why our graduation ceremony, in 2015, should be the same as it was for the Class of 1915. So, rather than choosing just one speaker to represent all of us, we decided instead to write this speech together as a class, using an online wiki that allowed all of us to contribute.” Belcher delivered the speech with two other law students who received their JD degrees that day, Michael Mestitz and Ashlee Pinto.

‘You’ve Made It’

The WikiSpeech noted that the Class of 2015 started at Stanford Law School with a professor congratulating them by saying, “You’ve made it.” “We thought we knew what he meant, looking around our sun-drenched campus filled with palm trees and beautiful buildings. Our future classmates were accomplished, if a little intimidating – veterans, educators, musicians, athletes, activists – people who never thought they would be here, and people who knew this was the plan all along. We had made it to Stanford and, we thought, maybe we could relax,” the students said.

But soon they “lost the outside world to casebooks, italicized commas, balancing tests and two spaces after a period.” As their legal training progressed, they began to find ways they could make change for others and set to work. Among their accomplishments were securing the release of clients who had previously received life sentences for petty offenses under California’s Three Strikes Law, protecting the rights of individuals to practice their faith, representing children to make sure they received an education that met their needs, providing tax assistance, helping families threatened with eviction, and advocating for immigration reform and other human rights.

“We understand now that three years ago, we ‘made it’ because we arrived at a place where excellence does not mean perfection, where ingenuity thrives and collaboration is encouraged. We made it because we had the opportunity to learn from the great minds of our time and put that learning to work to help our clients ‘make it,’ too. And we made it because we found this community that we in turn ‘made’ for each other,” the class said.

Awards Presented

James Barton, SLS ’15, expresses his gratitude at receiving the Dean’s Award for Excellence in Service to Stanford Law School.

James Barton, SLS ’15, expresses his gratitude at receiving the Dean’s Award for Excellence in Service to Stanford Law School. Photo by GradImages.

Following the WikiSpeech, class Co-President John Casey presented the Dean’s Award for Excellence in Service to Stanford Law School to James Barton, then made a posthumous presentation of the Staff Appreciation Award to Paul Lomio, who was director of the Robert Crown Law Library until his recent death. Barton said, “The reason he is receiving this award is not just because he helped build a world-class library but also because he cared about us and let that show.” The award was accepted by the Lomio’s daughter, Rita Lomio.

Juliet Brodie, associate dean of clinical education, the Mills Professor of Law, and director of the Mills Legal Clinic as well as the Stanford Community Law Clinic, was presented the John Bingham Hurlbut Award for Excellence in Teaching, the first time a professor who teaches exclusively in the clinic has received this honor.

‘Excruciatingly Bad’ Year

In her address, Brodie said, “It’s been a tough year,” and she noted that one reason was the loss of Eric Garner, Tamir Rice, Michael Brown, Walter Scott, Freddie Gray and “literally countless, and uncounted, and unknown, people like them – people whose lives we honored together in December.” She said, “This felt like bad, bad news. And it is acutely bad, personally bad, excruciatingly bad, for all of us in law because these incidents call into serious question the legitimacy of our systems of government accountability, and thus our rule of law itself, as well as our progress on, what many, and certainly on what I think, is the foundational, unresolved issue of our nation.”

Other bad news for those who care about justice in America, the richest country in the world, she said, are income inequality, the highest poverty rate in recent memory and unequal access to justice. “The U.S. has one legal aid lawyer for every 6,400 low-income people, compared to one private lawyer for every 429 people who are not poor,” she said.

Students chose Juliet Brodie, associate dean of clinical education, to receive the John Bingham Hurlbut Award for Excellence in Teaching.

Students chose Juliet Brodie, associate dean of clinical education, to receive the John Bingham Hurlbut Award for Excellence in Teaching. Photo by GradImages.

But there is good news, too, Brodie said. “You have chosen a profession that has service at its core, and equality and justice as its animating values, if not always its daily diet.” She explained, “Law, at its most basic, is the system by which we work out the tensions – sometimes dangerous tensions – inevitable from collective life, the system by which we balance private gain and public benefit, private freedoms and public commitments, by which we, with the consent of the governed, regulate private behavior and establish norms and parameters for peaceful pursuit of happiness.”

The other good news, she noted, is, “You are a remarkable bunch.” She recalled students who had worked long into the night in East Palo Alto, perfecting a brief to submit on behalf of a homeless person with mental illness and young lawyers who had stood up with children seeking a decent education and victims of horrible violence seeking asylum.

She offered inspiration from ancient Jewish teachings called the Mishnah, the Ethics of Our Ancestors, which teach: “You are not required to complete the task of repairing the world. But neither are you free to ignore it.”

Her last piece of advice was, “Don’t blink, because before you know it, 25 years will have passed, and young people will be asking you, ‘How did you decide to spend your career?’ Get your answer ready now, and then go do it.”

Dean’s Charge to the Class

Dean M. Elizabeth Magill offers advice to young lawyers

Dean M. Elizabeth Magill offers advice to young lawyers affected by the year’s troubling events. Photo by GradImages.

In her charge to the class, Dean Magill offered advice to those whose faith had been shaken by the year’s troubling events. First, she said, “Engage. It might be difficult, but you’ve got to get yourself to act. There are many ways to do it – participate, advocate for change, lead – and, given your education, you possess an amazing set of tools that give you a way of thinking and acting.”

Second, she advised finding a community, a connection with others. Referring to the history of “charges” in battles, she said you need “a group with a shared goal working together to accomplish a mission. For you, it could be a community of two, or a movement of thousands.”

Her third suggestion was to change the question: “If you lose hope, then look again at the problem. Is there another way of understanding it? Can you find a different piece of it to make progress? We have all had the experience of beating our head against the wall, failing to find the solution. And then we change something about our perspective – we talk to someone new, we change the focus, we learn of an unusual example, we think about it from the opposite perspective – and something emerges.”

Her own inspiration, the dean said, is the students themselves. “You have done every single one of these things, many times over, since you got here.” She explained, “In your time here, you have engaged like mad, you have created community worthy of charging the field, and you have taken a second (and third and fourth) look at everything. Some of you have taken these actions in the face of a real crisis of faith in the legal system.”

“When you joined us, I told you we picked you and recruited you because we knew you would change us for the better. And you have,” Dean Magill observed as her final thought to the graduates. “Keep doing what you have been doing here. I know you will. Now, get to it!”

View full transcripts of the speeches and photos from the ceremony here. 

Stanford Law School Students Ride “Justice Bus” To Provide Legal Services To Veterans

Just call it mobile justice.

Six Stanford Law School students recently hit the road in an effort to deliver legal services to veterans in San Joaquin County.

Photo courtesy of OneJustice

Photo courtesy of OneJustice

Desley Horton, LLM ’15, Jeffrey Lash, JD ’16, Ju-Ching Huang, LLM ’15, Amy Tannenbaum, JD ’17, Carl Hudson JD ’17, and Viveca Fallenius, LLM ’15, traveled to Stockton, California on May 9, where they met with 20 veterans who needed help with expunging their criminal records.

The trip was part of OneJustice’s Justice Bus Project; which takes teams of attorney and law student volunteers to underserved rural areas where they set-up free clinics offering legal assistance to underserved Californians. It was done in partnership with the San Joaquin County Bar Association, San Joaquin County Public Defender’s office, and Rubicon.

“It’s a great opportunity to help people with criminal records who want to change their life and get a job,” said Fallenius. “The more I get involved the more I realize what an enormous need there is for pro bono work.”

It was one of five “JusticeBus” trips taken this year by SLS students, who have helped clients on matters ranging from workers’ rights, immigration, expungements of criminal records, and tax issues.

Photo courtesy of OneJustice

Photo courtesy of OneJustice

The Justice Bus Project is one of 20-plus pro bono programs offered at SLS with its origins at the school dating back to 2009.

“Students consistently report that working on pro bono projects such as the JusticeBus trips provide some of the most meaningful experiences of their time in law school,” said Jory Steele, director of Pro Bono and Externship Programs at the Levin Center. “There is nothing like the feeling of helping someone who truly benefits from your efforts.  It is my hope that through working on projects such as this that students will develop a life-long passion and commitment to doing pro bono work throughout their professional careers.”

Click here to earn more about SLS’s pro bono program.

 

Stanford Law School Students Embrace ‘Collective Intelligence,’ Will Deliver First-Ever ‘WikiSpeech’ at Graduation

Millennials have grown up in a world full of mass collaboration, surrounded by projects like Wikipedia that harness what’s been called the “wisdom of crowds.”

With that concept in mind, Stanford Law School’s Class of 2015 is using its collective voice to transform the school’s graduation ceremony.

“There is no reason that a graduation ceremony in 2015 should look the same as it did for the Class of 1915,” said Marta Belcher, JD ’15. “Being at Stanford and in the Silicon Valley, we are surrounded by a spirit of innovation that encourages us to ask, ‘Why do we do it this way, and how can we do it better?’”

Stanford Law School students working on the WikiSpeech during an "edit-a-thon."

Stanford Law School students working on the WikiSpeech during an “edit-a-thon.”

Inspired to at least try to do it better, Belcher proposed a wikispeech on the class speaker ballot so that the speech wouldn’t just be one person’s, rather it would be everyone’s. Her idea: the speech would be a collaborative effort written by the entire class using an online wiki. “We think that, by drawing on the wisdom of the crowd, we can come up with a speech that surpasses what any individual graduation speaker could write,” Belcher said.

The new concept intrigued Catherine Glaze, Associate Dean for Student Affairs. “I appreciated its novelty and the effort to be as inclusive as possible of all the perspectives in the class.  The Class Speech offers a window into the experience of the graduating class.  By expanding the number of class members involved in writing and delivering the speech, the wikispeech turns a small window into a more panoramic view.”

Meanwhile, student reaction to the collaborative concept varied from intense skepticism to broad support.

“I was initially opposed, especially since I was in the run-off [election],” says Leslie-Bernard Joseph, JD ’15, who was one of the eight candidates running for graduation speaker against Belcher. “To be honest, I was swayed by Marta. I think her intentions and vision are incredibly pure. It was compelling to me—the chance to make sure everyone’s voices were heard. Many of us talk about doing things differently, making the world a more democratic place, I think the wikispeech is a symbolic step.”

That symbolic step was realized when the wikispeech won the election for class speaker and students began the lengthy collaboration process of putting together the first-ever class speech written on a wiki.

Since then, more than 85 students from the class have contributed to the speech via the wiki site, e-mail, and participation in several “edit-a-thons.” And despite the high number of collaborators, the process has remained remarkably organized, says Belcher, adding, “We had decided in advance to write the wiki in stages rather than just having a blank page and a free-for-all.”

Marta Belcher, JD '15.

Marta Belcher, JD ’15.

In the first phase, students were given access to the wiki and added their ideas for overarching themes of the speech to a running list. Stage two focused on submitting content ideas, which resulted in the creation of more than 3,000 words of raw content in rough, bullet-point form. The third stage was the editing process, which began with an edit-a-thon on April 30, where students pulled from the content contributed during stage two to create a detailed outline of the speech that they filled in with proposed language.

The big reveal of the wikispeech will take place on June 13th at Stanford Law School’s graduation ceremony in front of hundreds of students and their families where, it will be delivered by Belcher, Michael Mestitz, JD ’15, and Ashlee Pinto, JD ’15.

As exciting as it may be to watch their work come to fruition, the real joy—for Joseph at least—may be in the process. “We came in together. We’re going out together. We’re planning on having an impact after graduation, together.”