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Monitor Daily Podcast

May 09, 2018
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TODAY’S INTRO

Monitor Daily Intro for May 9, 2018

The glitz and glam of an event like Monday’s Met Gala in New York, known as “fashion’s biggest night out,” are hard to ignore, even for a fashion know-nothing like me. But what really turned my head was a recent announcement by one of its hosts. As Donatella Versace told 1843 magazine: “Fur? I am out of that. I don’t want to kill animals to make fashion. It doesn’t feel right.”

Other designers share the sentiment. Gucci, for example, maker of the fur-lined loafer, announced late last year that its 2018 spring line would be fur-free for the first time.

Many consumers had already reached that conclusion, of course; pressure has been growing on the fur industry for years. Millennials are tipping the scales with their market clout and interest in ethical consumption. Consumers can easily track which brands measure up to their ethical standards. Technology is helping propel the shift, with new forms of faux fur getting the ultimate seal of approval from designers such as Stella McCartney and vegan leather rising in prominence.

When ground-level momentum and high-end sensibilities, ethics and good business, meet, it feels as though it’s a tipping point. As Gucci’s CEO put it, fur now feels “a little bit outdated.

Now to our five stories, starting with insights on a likely summit between US President Trump and North Korean leader Kim Jong-un. The breakthrough today: the release of three US citizens imprisoned in North Korea.

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Trump, Iran, North Korea, and the art of the denuclearization deal

The juxtaposition of withdrawal from the Iran nuclear deal and an impending summit with North Korea over its nuclear weapons program help us understand key drivers of President Trump's approach to international dealmaking: a preference for face-to-face talks and a stomach for brinkmanship.

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“Watch how a real denuclearization deal is done.” That seems to be the subtext of President Trump’s statement Tuesday in which he simultaneously pulled the United States out of the nuclear deal with Iran and touted his upcoming summit with Kim Jong-un. On Wednesday the State Department trumpeted that not only had Secretary of State Mike Pompeo met with Mr. Kim, but he had also secured the release of three detained Americans. Trump’s seeming recipe for dealing with a rogue nation: Use brinkmanship coming directly from the president, threaten obliteration by America’s unequaled firepower, and make talks a one-on-one affair. But by saying he can get a better deal, he is setting himself a very high bar. “In decrying the substance of the Iran deal, he is saying that in any negotiations with North Korea he would have to get an agreement that surpasses it,” former Deputy Secretary of State Tony Blinken told reporters Tuesday, “and that means getting the North Koreans upfront to dismantle the vast bulk of their nuclear program, as we achieved with Iran, and … the most intrusive inspections regime on the ground in North Korea in history.”

Trump, Iran, North Korea, and the art of the denuclearization deal

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Jonathan Ernst/Reuters
President Trump speaks to reporters at the White House after signing a proclamation declaring his intention to withdraw from the JCPOA Iran nuclear agreement on May 8, 2018.

It was no mere aside when President Trump used his statement Tuesday on withdrawal from the Iran nuclear deal to announce that Secretary of State Mike Pompeo was about to touch down in North Korea to lay the groundwork for the upcoming summit.

Instead, the leader who presents himself as a great dealmaker – and who disdains the kind of multilateralism the 2015 Iran deal represents – was making a point.

To his base, to the allies who had implored Mr. Trump to keep the United States inside the international agreement, and to the previous administration, the president was saying, “Watch how a real denuclearization deal is done.”

If such events had a soundtrack, this one’s would have been the 1995 anthem, “This is how we do it.”

Trump – who had vowed as a candidate to end President Barack Obama’s signature foreign-policy achievement – intends to tout his North Korea gambit as the template for how negotiations with rogue nations like Iran and North Korea should be carried out.

The showcasing of the North Korea model continued Wednesday, as the State Department trumpeted that not only had Secretary Pompeo met with Kim Jong-un, but he had also secured the release of three detained Americans “and is delighted to bring them home.” Trump also tweeted Wednesday that the time and place of his meeting with Mr. Kim has been set, but he did not disclose details.

Of course the Trump model is not just about one-on-one sit-downs. Rather, instead of long negotiations involving diplomats from a half-dozen countries, it calls for the following: use brinkmanship coming directly from the American president, threaten obliteration by America’s unequaled firepower, and make talks a one-on-one affair between the deciders of each side.

That it is less about diplomatic prowess and more about imposing America’s might was made clear by Trump’s national security adviser, John Bolton, who told reporters at the White House Tuesday that the Iran deal’s fatal flaw was its failure to employ America’s positions of strength.

“The lesson that America learned, painfully, a long time ago, but that Dean Acheson once said, is we only negotiate from positions of strength,” Mr. Bolton said. “It was a lesson that the last administration did not follow.”

How North Koreans read the move

He went on to link the president’s action on Iran to upcoming negotiations with North Korea. “Another aspect of the withdrawal that was announced today is to establish positions of strength for the United States, and it will have implications not simply for Iran, but for the forthcoming meeting with Kim Jong-un of North Korea,” he said. “It sends a very clear signal that the United States will not accept inadequate deals.”

Other experts, including some who were involved in negotiating the Iran deal and with past talks with North Korea, say Trump’s decision to withdraw from a deal the US negotiated alongside international partners and signed on to may have a different impact with the North Korean leadership.

Pulling out of a multilaterally negotiated accord “says the United States is not a reliable partner,” says Wendy Sherman, the Obama administration’s lead negotiator on the Iran deal. She was earlier involved in talks with the North Koreans.

“Some analysts have said that North Korea may not care about” the US leaving a multilateral deal, “that the president will say he’s going to make a better deal with North Korea. I’m not so sure of that, having negotiated with the North Koreans myself,” she adds, “but I can tell you for sure that it will make South Korea, Japan, China, and Russia more wary of the United States as a negotiator.”

Priority for Europeans

Bolton scoffs at such assertions, underscoring that he would be speaking as of Wednesday morning with his European counterparts about ways to now secure a comprehensive deal with Iran. For the Trump administration, the aim would be to address not just the current deal’s shortcomings (like its sunset clauses on nuclear activities) but Iran’s ballistic missile development and “malign activities” in the region as well.

The Europeans will continue to talk with the US – there’s consensus on the other side of the Atlantic that nothing was gained by Europe’s bitter falling-out with the US in 2003 over Iraq. But core powers France, Britain, and Germany are making it clear that their top priority is going to be preserving the current deal and keeping Iran in compliance with it.

That priority is likely to mean that US allies will end up working more closely with Russia and China, also signatories of the Iran deal. And the US-Europe estrangement caused by the US withdrawal will only sharpen if re-imposed US sanctions end up hitting European companies trading with Iran as permitted under the nuclear deal.

More long-term, Trump’s withdrawal from the Iran deal and his prioritizing of a bilateral model of negotiations with North Korea is likely to cement the global perception that the world has to learn how to work with a less multilateral America putting hard power first.

Indeed, up until now, Trump’s major foreign-policy decisions could be seen as primarily reflections of an America-First approach. From pulling out of the Paris climate accords and nixing the Trans-Pacific Partnership trade deal to imposing tariffs on China and other trading partners and even threatening allies over inadequate defense spending, the aim could be seen as putting American workers and taxpayers first.

But the Iran deal exit is about America Alone – the US getting out of a multilateral arrangement that hamstrung American power – and Trump’s vision of a more muscular leadership where the US goes forward and others follow.

Setting too high a bar?

By spotlighting his North Korea efforts – the end goal of which is the complete denuclearization of the Korean Peninsula – even as he pulled the US out of the Iran deal, Trump was telling the world his approach would be superior and would never sign America on to a weak deal.

That will appeal to Trump’s supporters at home, but some experts with diplomatic experience worry the president is laying the groundwork for disappointment – whether with North Korea, or over prospects for getting a “better deal” with Iran.

“The president is setting a standard for himself with any negotiations with North Korea that it will be almost impossible for him to meet,” former deputy secretary of State Tony Blinken told reporters Tuesday.

“In decrying the substance of the Iran deal, he is saying that in any negotiations with North Korea he would have to get an agreement that surpasses it, and that means getting the North Koreans up front to dismantle the vast bulk of their nuclear program, as we achieved with Iran, and it would mean … the most intrusive inspections regime on the ground in North Korea in history,” he says.

That is indeed what Trump is saying he believes he can get. But as Mr. Blinken says, “Those will be very, very difficult bars to jump.”

Haspel hearing puts ‘enhanced interrogation techniques’ in spotlight

Can a professed change of heart win over skeptics? Gina Haspel, President Trump’s choice to head the CIA, says she would not return to the brutal interrogation programs of the past. But context matters here, since the man she would answer to has said he would favor resuming waterboarding and more. 

Alex Brandon/AP
Gina Haspel, President Trump's pick to head the Central Intelligence Agency, is sworn in during a confirmation hearing of the Senate Intelligence Committee May 9 on Capitol Hill in Washington.
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Gina Haspel’s résumé is stellar. A 33-year veteran of the Central Intelligence Agency who has been serving as acting director of the agency since Mike Pompeo’s nomination as secretary of State, she worked undercover for decades as a spy and spymaster around the world. And she appears to have the support of much of the intelligence community for the top CIA post. Her biggest obstacle remains the so-called enhanced interrogation techniques used for questioning prisoners in the tumultuous period following 9/11. At her confirmation hearing Tuesday, she said she would never use those techniques, which many consider torture, again. But a complicating factor in this case is context. Whatever Ms. Haspel herself now believes, she would be serving a president who has said he would resume waterboarding and worse, if possible. That changes the criteria for evaluating Haspel’s conversion – and raises questions about what she might do if pushed by President Trump on a wider array of possibly problematic activities. “A confirmation is more than a character judgment about the nominee,” writes Benjamin Wittes, senior fellow in governance studies at the Brookings Institution, in a Lawfare post on the Haspel nomination.

Haspel hearing puts ‘enhanced interrogation techniques’ in spotlight

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Gina Haspel says she will not resume the Central Intelligence Agency’s brutal interrogation programs of the past. As a CIA official in the wake of the 9/11 terrorist attacks, Ms. Haspel supervised waterboarding and other questioning techniques considered by many to be torture. But now she is President Trump’s nominee to head the CIA, and she pledges the agency will never resume that activity if she can help it.

“I can offer you my personal commitment, clearly and without reservation, that under my leadership CIA will not restart such a detention and interrogation program,” Haspel said at her confirmation hearing Tuesday before the Senate Select Committee on Intelligence.

Will this be enough to get her over the hill and win Senate approval of her nomination? After all, the waterboarding issue is major, plus one – and critics have focused on it as a possibly fatal flaw in her otherwise admirable intelligence-community record.

Or will her apparent change of heart not be enough? Often in politics, opponents pick and choose, opting to emphasize positions they find most advantageous to their own arguments.

The problem in this case is the context, say experts. Whatever Haspel herself believes, she would be serving a president who has said he would resume waterboarding and worse, if possible. That changes the criteria for evaluating her own conversion – and raises questions about what she might do if pushed by Mr. Trump on a wider array of possibly problematic activities.

“A confirmation is more than a character judgment about the nominee,” wrote Benjamin Wittes, senior fellow in governance studies at the Brookings Institution, yesterday in a Lawfare post on the Haspel nomination.

Haspel’s own resume is stellar. A 33-year agency veteran who has been serving as acting director since Mike Pompeo’s nomination as Secretary of State, she worked undercover for decades as a spy and spymaster around the world. She appears to have the support of much of the intelligence community bureaucracy. Some former intelligence officials who have been highly critical of the Trump administration, including John Brennan and James Clapper, publicly back her for the top CIA post.

Her biggest problem remains the so-called “enhanced interrogation techniques” used for questioning prisoners in the tumultuous period following 9/11. Haspel ran a covert site where such questioning took place, reportedly in Thailand. She also later supported the action by her then-boss to destroy videotapes of the use of the “enhanced” techniques, which many consider torture, and which have subsequently been outlawed by Congress and banned by presidential executive orders.

A 2014 report by the Senate Intelligence Committee raised doubts about whether the enhanced interrogation techniques were effective, and detailed the harsh methods used, ranging from punching and slamming prisoners against walls to severe sleep deprivation and near drowning.

Republican Sen. John McCain, who endured severe treatment while a prisoner of war in Vietnam, said at the time, “I have long believed some of these practices amounted to torture, as a reasonable person would define it, especially, but not only the practice of waterboarding, which is a mock execution and an exquisite form of torture.”

Haspel has said she would never use such techniques again. But at her confirmation hearing, she defended them as having provided useful intelligence in some circumstances, and evaded efforts from Democratic senators to weigh in on whether they were immoral or not. She noted that President George W. Bush had authorized their use at the time she ran the Thai prison. A number of times, she referenced the Army Field Manual as the determining text of instructions for future interrogations.

It was not a full-throated rejection of waterboarding and all it entailed, notes Elizabeth Grimm Arsenault, an assistant professor at the Georgetown University Security Studies Program.

“My concern is that she did follow orders that were violative of her Constitutional oath,” says Dr. Arsenault in an email.

“In addition, she recently said that it is a tragedy that the controversy around the rendition, detention, and interrogation overshadows its contribution to our country,” she adds. “In my opinion, the tragedy is that these techniques were considered in the first place.” 

That said, it is unlikely they will be used again, according to Arsenault, given the web of prohibitions now in place against them. Trump might revoke his predecessor’s Executive Order banning them, but Congress in 2015 passed an amendment to the Defense Authorization Act limiting interrogation to techniques outlined in the aforementioned Army Field Manual.

Of course, Trump might ask for waterboarding, anyway – pushing the power of a president as commander-in-chief. Haspel, at Tuesday’s Senate hearing, said she did not believe the president would do that. Pressed, she appeared to indicate that she would not carry out such an order.

And that is the dilemma facing her critics. On the one hand, some Democrats find her somewhat bureaucratic, unwilling to look the moral implications of waterboarding fully in the face, and overly protective of past colleagues who destroyed taped evidence of the interrogations. On the other hand, Haspel is an experienced woman who has the support of Langley staff and past colleagues. Any other Trump nominee would almost certainly be more political and perhaps more willing to work with the president on his demands.

That’s why Benjamin Wittes of Brookings says that on balance he supports Haspel for the post.

“For me, at least, the call of professionalism and analytical seriousness and the desire to insulate a major intelligence component against the predations of the president takes precedents over optimizing senatorial moral and policy messaging on interrogation,” he concluded in his Tuesday analysis.

An unprecedented effort to stem opioid crisis – and the judge behind it

Solving the opioid crisis seems like a daunting task. But the judge at the center of the largest opioid litigation in the United States says that "ordinary people can do extraordinary things if they step up." Here's what that looks like in one court.

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Can the opioid crisis be solved in court? A federal judge in Cleveland presiding over an unprecedented array of lawsuits sees an opportunity to help all sides find a way forward, from drug companies whose pills spawned a national crisis that has cost an estimated $1 trillion to cities struggling under the financial and social toll. “The one thing that I think everyone can agree upon is no one wanted or intended millions to get addicted and … 50,000 to 60,000 to die every year,” says Judge Daniel A. Polster, who is overseeing some 700 opioid lawsuits filed in federal courts that have been consolidated into one legal behemoth known as a multidistrict litigation. The MDL approach, which overwhelmingly favors settlements, could save money and time, but it does not satisfy everyone’s sense of justice. It lacks the transparency and public accountability of a trial, for one. Plus, says Elizabeth Burch of the University of Georgia Law School, “There’s always a lingering question … is this a job for the courts to do, or is it something the legislature should be doing?”

An unprecedented effort to stem opioid crisis – and the judge behind it

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Christa Case Bryant/The Christian Science Monitor
From his office at the Federal Court House in Cleveland, Judge Daniel A. Polster is presiding over national prescription opioid litigation that includes some 700 lawsuits and counting.

More people died from drug overdoses in Ohio in 2016 alone than were killed in the 9/11 terrorist attacks. Last year, the opioid-driven trajectory continued, with Ohio seeing a nearly 40 percent increase in overdoses.

Now a federal judge in Cleveland sees an opportunity to do something about it, and he is seizing it with gusto.

“Ordinary people can do extraordinary things if they step up,” says Judge Daniel A. Polster in an interview in his 18th-floor Federal Court House office overlooking Cleveland. “It’s not a failure if you don’t succeed; it’s a failure if you don’t try.”

Judge Polster has found himself at the helm of an unprecedented legal battle over prescription opioids that pits hundreds of American communities against drug companies. He doesn’t see his role as referee in a judicial match between archenemies, but rather as a mediator. He views federal court as “a problem-solving institution” and is encouraging all sides to come together to stem the tide of addiction and overdoses, which have led to the deaths of more than 350,000 Americans and cost the country an estimated $1 trillion.

“The one thing that I think everyone can agree upon is no one wanted or intended millions to get addicted and no one wanted or intended 50,000 to 60,000 to die every year,” says the judge, who was appointed by former President Bill Clinton. “We all benefit if you can turn the trajectory down.”

On Thursday, the key players will reconvene for a settlement conference, which could indicate how much progress has been made.

Some 700 opioid lawsuits filed in federal courts across the country have been consolidated into one legal behemoth known as a multi-district litigation (MDL). This is one of the most complicated MDLs in the history of the legal tool, introduced more than 50 years ago by Congress.

The approach could save a great deal of money and time in litigating the opioid crisis, in which roughly 150 Americans are dying per day. But it does not satisfy everyone’s sense of justice. MDLs, which overwhelmingly favor settlements, lack the transparency and public accountability of a trial, for one, and there are ethical concerns over the small community of lawyers who work the cases. There are also questions over whether tackling complicated and far-reaching social issues should be left to elected representatives.

The judiciary, after all, is not designed to be a proactive institution. The limited accountability of federal judges, who are not elected but rather appointed for life, is supposed to be balanced by a narrow remit of enforcing existing laws, not crafting or revising policies.

“There’s always a lingering question about: Is this a job for the courts to do, or is it something the legislature should be doing?” says Elizabeth Burch, a mass litigation expert at the University of Georgia Law School.

On the other hand, the courts have to deal with cases brought before them – sometimes because of gaps left by the legislative and executive branches. 

“The court system, I would say, is the default system when Congress and the administrative agencies have failed to act,” says Judge Jack B. Weinstein, a Lyndon Johnson appointee who has presided over some of the most high-profile MDLs in American legal history including one involving Agent Orange and Vietnam War veterans.

To make an MDL

MDLs have existed as a legal instrument since the 1960s, when an antitrust scandal in the American electrical industry saw more than 1,900 separate civil actions filed in federal courts.

That prompted Congress to pass a law creating the MDL process, which allows for similar lawsuits filed in federal courts nationwide to be brought together before a single judge. A special panel of seven federal judges who specialize in mass litigation meet bimonthly to decide which cases to consolidate, and then ask a federal judge whether he or she would be willing to take it on.

MDLs have become increasingly common since 2002, jumping from 16 percent of the federal courts’ civil caseload to 39 percent. Notable MDLs include the Volkswagen emissions scandal, former football players suing the National Football League over brain injuries, and US military veterans citing health problems linked to the use of Agent Orange in Vietnam.

Polster, a Harvard-educated lawyer with 20 years’ experience as a federal judge, was a natural pick for the opioids MDL. Not only has he presided over two other such cases in the past, but he’s also located in one of the worst-hit areas of the nation. It’s hit close to home for him, too; his friend’s daughter died of an overdose.

“I don’t think we could have a better judge in the opioid litigation than Judge Polster,” says Jayne Conroy of Simmons Hanly Conroy, one of the plaintiff law firms leading the MDL. “He is so cognizant of the epidemic.”

Every MDL is complex, but this one is particularly so. The plaintiffs range from individuals to whole towns, counties, and states. Defendants span the opioids supply chain, from major drug manufacturers like Purdue Pharma and drug distributors like McKesson, to drug retailers like CVS and Walgreens. Even individual doctors are defendants.

These plaintiffs are also making a variety of claims against the defendants, from falsely marketing drugs to foisting excessive costs on jurisdictions for law enforcement and emergency services.

This complexity is likely to make settlements that much harder to achieve, which demands more of Polster – but also gives him more influence over the outcome of the case than normal.

“The court has no specific rules,” says Adam Zimmerman, an associate professor at Loyola Law School in Los Angeles. “It just has to kind of go on instinct of how to manage all these players with different interests in a settlement.”

Go to settle, or go to trial?

At the first settlement hearing for the opioids MDL, Polster came out swinging.

“My objective is to do something meaningful to abate this crisis, and to do it in 2018,” he said.

“You often don’t see judges talking so frankly and so early,” says Professor Zimmerman, who is now drawing on Polster’s comments from that hearing to teach his students. “I think there are good reasons to allow the litigation to play out a little bit before the parties really know how to talk settlements.”

While it is unusual for an MDL to judge to want to settle the litigation that quickly, that was not how MDLs were originally intended to go.

The MDL process was supposed to streamline only the pretrial phases before sending each case back to the court it had originally been filed in. Over the decades, however, it has become routine for cases sent to an MDL judge to never return. On average, more than 90 percent of cases in an MDL end in a settlement.

That has raised the question that MDL judges may be exceeding their authority by pressing for settlements. MDL judges tend to disagree. Judge Weinstein, the Johnson appointee, is one of the most prominent.

Talking with all the parties and examining all the evidence is a years-long process, and over the course of those years the judge becomes familiar not only with the details of the case but also with the people involved.

“If I’m the judge who has these cases, I should try to settle them,” says Weinstein, who serves in the Eastern District of New York.

Since Polster’s January hearing, he has walked back his demands for settlements this year. Last month he picked three Ohio-based cases to serve as bellwether trials: the city of Cleveland, the surrounding Cuyahoga County, and Summit County, home to Akron. That combined trial is set for March 2019.

Other plaintiffs in the MDL are anxious to get a trial, too.

Mayor Steve Williams of Huntington, W.Va., after hearing the drug distributors and manufacturers explain the flow of parties involved in the crisis, came away with a sense of resolve.

“In the midst of all that, there was not a single mention of those of us who are left to clean up their crap,” says Mayor Williams. He cited the strain on first responders and the economic toll the opioid crisis has taken on cities like Huntington, which is one of the hundreds of plaintiffs in the MDL and has estimated the crisis’s annual toll on the city at more than $100 million. “And that just said to me very clearly, that we have to have our day in court.”

Paul T. Farrell, Jr., one of the co-leads in the opioid MDL, whose coalition of law firms represents hundreds of the plaintiffs, says he is hopeful that the county surrounding Huntington will be included in a second round of bellwether trials announced in August.

But some are eschewing the MDL altogether. Oklahoma Attorney General Mike Hunter, who had secured the first trial date in the opioid crisis before Polster came along, wants Purdue Pharma and the other drugmakers named in the suit to be tried before a jury of Oklahomans. The lawsuit accuses drugmakers of deliberately misrepresenting the risk of addiction to dramatically increase sales of prescription opioids, causing “catastrophic” damage to the state.

“We intend to hold the companies accountable, and the recovery that our state needs to make from this epidemic needs to be expensed to the companies that caused the damage,” he said in a phone interview.

Thanks to an order from Polster, Mr. Farrell has obtained closely held records from the Drug Enforcement Agency's ARCOS database detailing every opioid pill transaction from 2006-14, tracing the chain of distribution from drug manufacturer to drug distributor to pharmacy for six states: Ohio, West Virginia, Michigan, Illinois, Alabama, and Florida. This week the judge expanded that order to include every state, says Farrell, who adds that the DEA is to comply by May 30.

SOURCE:

IMS Health, Vector One, National Institute on Drug Abuse, Centers for Disease Control and Prevention

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Jacob Turcotte and Karen Norris/Staff

Problem areas

Some mass litigation experts are concerned that attorneys in MDLs may not always have the best possible outcome for their client as their main objective.

Professor Burch has studied the appearance of “repeat players” in multidistrict litigation – where a small group of law firms representing plaintiffs and defendants often hold outsize influence over settlement negotiations. In every MDL a handful of attorneys are chosen to “lead” – act as coordinators for the hundreds of litigants. In analyzing 73 MDLs, she found that 50 attorneys occupied 30 percent of all plaintiff-side leadership positions, and that 16 percent of the law firms involved held nearly 54 percent of all leadership positions. On the defense side, repeat player firms held 82.3 percent of the available leadership roles.

Judges often appoint these attorneys to leadership positions because of their previous experience in MDLs, but that creates a snowballing effect whereby a small group of attorneys gain disproportionate experience – and thus disproportionate influence.

With the same groups of attorneys often working with each other on different MDLs, conflicts of interest could arise.

“If I am consistently part of a working group with the same attorneys on the defense side, that becomes my primary community of interest, so the clients become sort of secondary,” says Burch.

But Habib Nasrullah, a partner at Wheeler Trigg O’Donnell LLP in Denver who has represented defendants in several MDLs, says having a small community of expert attorneys fosters a positive element of collaboration.

In the mass litigation context, this close relationship can help defense lawyers by keeping frivolous claims out of the MDL. The more sophisticated plaintiffs lawyers “want to get the money to the people who deserve it, [and] if we’re going to pay money we only want to pay it to people who deserve it,” says Mr. Nasrullah. And when it comes to dealing with the many claims that aren’t frivolous, he adds, “there’s almost a necessity to work together to create a structure for the settlement.”

Burch also has some concerns about the long-term implications of these settlements, however.

The 1998 settlement between 46 states and four of America’s biggest tobacco companies, for example, included substantive policy changes. Cartoons marketing cigarettes to children are now a thing of the past, but the protracted payments for damages means “states have been beholden to this stream of income … so now they have a stake in long-term viability of the tobacco industry.”

“That’s the worry,” she adds. “What problems are we trying to solve today, and what problems could we be creating for tomorrow?”

Avoiding ‘an excuse to do nothing’

Polster won’t speak about the details of the national prescription opioid litigation, but says his general philosophy on mediation was sparked by observations his commercial litigator wife, Deborah Coleman, shared with him about the value of a judge sitting down with parties.

“A trial is a fairly crude, blunt-edged instrument,” he says – good for moving money from one side to another, but not much else.

Polster, whose Jewish faith teaches tikkun olam – partnering with God to repair the world – says that while many disputes are framed in terms of money, it’s often more about feelings. A mediator who is an empathetic listener can help parties air those feelings – and then move past them.

“I sometimes feel like a rabbi or priest or therapist,” says the judge, recounting how clients have cried or yelled while discussing their case with him. It’s a different sort of day in court, but often more cathartic, he says, than sitting through a trial, where the lawyers do most of the talking. And having a mediator hear them out often frees them to move forward, he says, rather than remaining “a prisoner of the past.”

Nobody thinks MDLs are a perfect tool for solving mass litigation cases, let alone solving urgent social issues like the opioid crisis. But, says Polster, waiting to come up with a perfect solution to a complex problem is an excuse to do nothing.

“So if you have a complex problem, you say, ‘Well, I think there are some steps that we can take to move forward,’ ” he says. “And then you try and take those steps.… That’s what I think I’ve challenged people to do.”

SOURCE:

IMS Health, Vector One, National Institute on Drug Abuse, Centers for Disease Control and Prevention

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Jacob Turcotte and Karen Norris/Staff

Difference-maker

The accidental environmentalist who went deep to save species

A long-built expertise can help drive a social movement and effect change. But so can an amateur’s sense of discovery and savvy commitment to justice. This piece looks at a grass-roots triumph.

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To author and documentarian Claire Nouvian, one of the clearest symbols of the fragility of the seas is a creature that almost nobody knows about. Her sense of awe for the piglet squid – and other deep-water denizens – overcame her lack of an environmental background. It also propelled her into a campaign against bottom trawling, called one of the most destructive forms of commercial fishing. When European Union institutions were preparing to reform laws on the practice in 2008, Ms. Nouvian saw her chance. She performed an analysis of French deep-sea fleets that showed they were unprofitable, despite subsidies. By 2012 she had won a case against a supermarket-owned trawler fleet for claiming in advertising that its practices posed no threat to the marine ecosystem. The consumer activism she inspired help bring about an EU-wide ban in June 2016. And now it has won her the Goldman Environmental Prize – the “Green Nobel” – given annually to grass-roots environmentalists. One of her next fights: ensuring that the World Trade Organization adopts an agreement in 2019 to end public subsidies that drive overfishing worldwide. She has faced strong backlash. She is unbowed. Says Nouvian: “It is going to be a long fight.”

The accidental environmentalist who went deep to save species

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Courtesy of The Goldman Environmental Foundation
Claire Nouvian has been chosen for a Goldman Environmental Prize, which is given annually to grass-roots environmentalists.

When it came time to choose a logo for her nongovernmental organization Bloom, which fights to preserve marine environments, Claire Nouvian opted for the piglet squid.

The deep-sea creature is as captivating as it is cast aside. “It’s just great; just watch it: It does the show for you,” Ms. Nouvian says. “Yet no one knows about it; no one cares about it. No one would know if it disappeared.”

And that pretty much sums up the past decade for Nouvian, as she’s fought to end deep-sea trawling. What began with wonder at the creatures residing in the depths has turned into a fierce battle that has brought her death threats and financial distress.

This year the fight has garnered her a Goldman Environmental Prize – dubbed the Green Nobel – which is given annually to grass-roots environmentalists who are struggling, often against great odds, around the world for change. Nouvian has managed to rally the French public to her side as she’s taken on powerful lobbies in her country and more broadly in Europe, ultimately helping to secure a European Union-wide ban on deep-sea trawling that started phasing in last year.

“When I discovered the deep sea, how incredibly fascinating and strange and unknown this environment was, I wanted to share it. But in the process of digging into it, I also learned how remote, pristine, and fragile it was and that it wasn’t pristine anymore because we were trashing it with huge industrial bulldozers, deep-sea bottom trawlers, from various nations,” she says. “I was shocked.”

Although the deep-sea fight started as a lonely campaign, she saw it as urgent. “When there is an opportunity for exploitation and profit to be made, industry is on top of the game much faster than scientists, legislators, or public awareness,” she says.

Born in Bordeaux, France, Nouvian moved around the world as a young girl, including to Algeria, where she spent weekends by the sea with her father, a recreational fisherman. As an adult she became a journalist and documentary producer, and she was drawn to the subject of how animals cope with eternal darkness while she was working on a television show about it. She published a book on it, called “The Deep,” in 2006.

She didn’t have an environmental background or a particular interest in animal welfare. It was more a sense of awe – which the Parisian still displays a decade later, whether she’s talking about the Monterey Bay Aquarium in California, the piglet squid, or the little regard that so many have for this creature’s well-being.

Bottom trawling is considered one of the most destructive forms of commercial fishing. In France, the largest commercial fleet of ships, which has included six deep-sea trawlers, is owned by the supermarket Intermarché. Such ships, Bloom says, have the capacity to destroy the landmass equivalent to the city of Paris in two days – and along with it coral species that have grown for 10,000 years.

When EU institutions were preparing the reform of laws on deep-sea fishing in 2008, Nouvian saw a chance to influence policy. She started by analyzing the financial accounts of French deep-sea fleets, ultimately showing that they were all unprofitable despite being subsidized. She then won a case in 2012 against Intermarché for claiming in advertising that its fishing practices posed no threat to the marine ecosystem.

Some 900,000 signatures

The next year Bloom launched a consumer campaign that was eventually turned into a comic strip by French cartoonist Pénélope Bagieu, which at its heart shows commercial exploitation where almost everyone loses. It called on the French government to support an EU-wide ban on deep-sea trawling – collecting 900,000 signatures.

By January 2014, Intermarché announced it would no longer trawl below 800 meters (875 yards) and that it would stop selling deep-sea fish in its supermarkets by 2025. Yet France continued to oppose the EU legislation, so Nouvian didn’t give up. Once France was on board, the EU was able to get all members to agree to a ban in June 2016.

Today, trawling is prohibited in 360,000 square miles of the northeastern Atlantic. Nouvian’s “innovative and data-driven approach directly led to Intermarché’s adoption of sustainable fishing practices. This was the crucial first step that led to France – and ultimately the European Union itself – supporting a ban on deep-sea bottom trawling,” says Michael Sutton, executive director of the Goldman Environmental Foundation, in a statement on Nouvian’s selection for the prize.

Nouvian looks at the fight both philosophically and pragmatically. On the one hand, it’s a disconcerting story about the power of technology that humans have created, similar to the way society is bracing for automated workforces or meddling in faraway elections.

“There is a realization that we have a technological responsibility,” she says. She sees a shortening interval “between technical efficiency and the possibility to destroy everything, wipe things out in an instant.... We’ve created this monster that we’re not too sure we can control.”

But she concedes that the reason the public supports her cause is probably more pragmatic: People realized that their tax money was being used to subsidize the deep-sea fleets.

Staying the course

She’s amassed plenty of enemies, and not only has she received death threats, but she’s been defamed. She credits a fishery scientist, Daniel Pauly, for giving her the fortitude to stay the course. “He told me, ‘Don’t even read what they write. Don’t pay attention. Stick to your productivity. Prove it with data.’ It’s the best piece of advice I’ve ever been given.”

Yet financial strain made this work seem untenable at points, especially after she became a mother. She earned money on “The Deep” and an accompanying exhibition at the National Natural History Museum in Paris, but she funneled most of that back into Bloom, based in Paris and Hong Kong. “I can take a lot of workload, political pressure, and death threats, but the financial pressure is what made me close to giving up,” she says.

Except she never did. “Claire is ... agile and creative and bulldoggish,” says Matthew Gianni, a former commercial fisherman who became a conservationist. “She gets onto something and won’t let it go.” Mr. Gianni, who cofounded the Deep Sea Conservation Coalition, and Nouvian worked together to push for the EU ban.

Despite her victories, she is not optimistic. In November, some 15,000 scientists signed a “Warning to Humanity,” about everything from overpopulation to climate change to lack of clean water. It is the second of its type: One in 1992 was signed by more than 1,700 scientists. “Fifteen thousand scientists,” she says, “and the next day people ask, ‘What’s on TV today?’ No, I’m sorry. We should stop and ... completely change the way we produce, consume, and live,” Nouvian says.

Her next battles include ensuring that the World Trade Organization adopts an agreement in 2019 to eliminate public subsidies that drive overfishing worldwide, and banning electric pulse fishing in Europe – a technique that uses an electric pulse to startle fish away from the seabed and into nets. In January, after a huge advocacy effort by Bloom and allies, the European Parliament voted to ban the practice in Europe, a surprise victory that has elicited a backlash from powerful lobbies, primarily Dutch, and some unlikely foes like Greenpeace Netherlands that have criticized the decision as counter to innovation. “It is going to be a long fight,” Nouvian says.

For more, visit bloomassociation.org/en.

How to take action

UniversalGiving helps people give to and volunteer for top-performing charitable organizations around the world. All the projects are vetted by UniversalGiving; 100 percent of each donation goes directly to the listed cause. Below are links to three groups supporting forward-thinking practices:

Pan African Sanctuary Alliance secures a future for Africa’s primates and their habitat through a collaboration of African sanctuaries, communities, and governments, as well as global experts. Take action: Make a donation to help rescue an animal from cruelty.

Develop Africa is committed to sustainable development in Africa through education and other means. Take action: Support a poultry project involving orphan children in Sierra Leone.

Osa Conservation applies scientific and other expertise to protecting the biodiversity of the Osa Peninsula in Costa Rica. Take action: Finance the planting of trees to help restore a rainforest.

Where texting delivers school – not distraction – to teens

When young people interact with technology, the outcome isn't always distraction. In this case, a new way of closing the gap on access to education – in places like besieged Yemen – grew out of insights garnered from constant use of a common communication tool.

Melanie Stetson Freeman/Staff
Michael Ioffe, a student at Babson College in Wellesley, Mass., has started what he dubs 'the first text message college course.' It's a daily dose of entrepreneurship education, an attempt to boil down the key lessons of a semester-long course into four weeks of daily texts.
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A group of public-spirited college students is spearheading a new initiative: text message courses. The idea grew out of recognition that people in places like war-torn Yemen – where phones are common, but internet access is not – could benefit from education delivered in alternative ways. By the end of May, the first four-week text course on entrepreneurship is expected to be available free of charge to students in Yemen, translated into Arabic. On May 15, English versions will start up for $12 in the United States, India, China, Nigeria, Canada, the United Arab Emirates, and Britain. Mindful of the challenges facing Yemenis, developers adapted the course to focus on using entrepreneurship more for community improvement than for creating businesses. “Most students don’t have access to conversations with innovators, leaders, and entrepreneurs that they look up to, so there’s this huge social-capital gap,” says Michael Ioffe, a first-year student at Babson College and co-founder of Arist, the company developing the text message courses. “Entrepreneurial thinking ... enables students to solve problems in new and unique ways. That applies not just to business, but also to our personal life and our community life.”

Where texting delivers school – not distraction – to teens

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Someday, after Yemen emerges from the conflicts that have gripped it for much of his life, Mohammed Al-Adlani wants to rise to the top of the Yemeni government.

In the meantime, the young man who left the capital city of Sanaa last year to attend the American University of Beirut is part of a modest project aiming to inspire and educate his Yemeni peers, to prepare them to shape a new way forward for their country.

He’s helping two American college students with an idea sparked by Mr. Al-Adlani’s observation that students in Yemen have limited access to school and the internet, but not to cellphones: Why not use texting to deliver a basic course on entrepreneurship?

It’s an experiment, but the motivation has been long in the making for these innovators: to narrow gaps that can put young people onto radically different trajectories.

“Most students don’t have access to conversations with innovators, leaders, and entrepreneurs that they look up to, so there’s this huge social-capital gap,” says Michael Ioffe, a first-year student at Babson College in Wellesley, Mass., and co-founder of Arist, the company developing the text message courses. “Entrepreneurial thinking … enables students to solve problems in new and unique ways. That applies not just to business, but also our personal life and our community life.”

By the end of May, the first four-week SMS text course is expected to be available free to students in Yemen, translated into Arabic. On May 15, English versions will start up for $12 in the United States, India, China, Nigeria, Canada, the United Arab Emirates, and Britain. 

It isn’t Mr. Ioffe’s first mission-minded startup. In high school, he hungered to learn from local business leaders about their career paths. So he “cold e-mailed” 100 of them in his hometown of Portland, Ore. Most rejected his invites to chat over coffee, but one agreed to a meeting if the teenager would bring a group of friends.

The experience inspired him to start TILE, a nonprofit that helps hundreds of student-led chapters in 43 countries sponsor live events where young people can talk with entrepreneurs and leaders in various professions.

Cellphones as a lifeline

Amid a drawn-out war and humanitarian crisis, the seven TILE events that Al-Adlani assisted with in Sanaa offered slivers of hope. Some of the speakers had risen out of poverty, and the conversations “helped a lot of high school students to have a general idea of their future,… the possibilities … [and the] challenges. The events empowered them and inspired them,” he says during a Skype interview from Beirut.

Now, he says, “the situation there is very bad. Most of the teachers cannot get their salaries because of the war.” 

More than 1,000 schools in Yemen have been destroyed or are housing displaced people, reports the United States Agency for International Development (USAID). The agency and its partners are distributing a condensed curriculum on paper that about 15,000 high school students can do at home to prepare for 9th- and 12th-grade exit exams.

Melanie Stetson Freeman/Staff
A new entrepreneurial course delivered via text message launches in May of 2018 and will be available around the world. Michael Ioffe, a course developer, shows one of the related texts.

Cellphones are a lifeline, Al-Adlani says, and should enable students to access the new text-message course from home. 

“It would be wonderful [to help] young people to know how to manage an accounting book” or other business basics, says an official with USAID in a phone interview. But it’s also important to bear in mind their need for resilience in a stressful environment. “They need hope quite desperately and support quite desperately, and to some degree, we don’t want to raise those [hopes] when we aren’t sure what the context will allow them,” says the official, who preferred not to be named due to safety reasons. 

Mindful of such concerns, Al-Adlani, Ioffe, and other course developers adapted the Yemen course to focus on using entrepreneurship more for community improvement than for creating businesses.

Help for those who are stratified, too

War is an extreme example, but it’s not the only door that can seem to close off opportunity. Sometimes it’s a simple matter of who’s in the network of a teenager’s family and friends.

In high school in Portland, students were “clearly stratified,” says Riley Wilson, Ioffe’s longtime friend and co-founder of Arist. (He has also been involved with TILE, the nonprofit, which is supporting the free course in Yemen.)

“We realized there’s nothing inherently different between us or any other person, it’s just … advantages we’ve accrued,” Mr. Wilson says, like learning through their middle-class families how to pick courses and use counseling resources to be competitive on college applications.

Their idea of boiling an educational course down to text messages did raise questions.

“My first impression was some skepticism,” says Fritz Fleischmann, one of Ioffe’s advisers at Babson. But because the content is introductory and includes “a kind of consciousness raising about entrepreneurship and self-realization, the short format may actually work quite well,” he says.

A two-week pilot in the US showed the text-message format may help young people pivot – even if just briefly – toward a more edifying use of their mobile phones.

“We want ‘good’ technology – technology that doesn’t force you to stay up all night, as people my age do with Youtube and Facebook,” Wilson says. The text messages will, however, link to optional longer readings and exercises.

In a survey, 81 percent of the 100 pilot participants said they would take a text message course again.

Just getting started

Whether or not the idea takes off as they hope, Ioffe, Wilson, and Al-Adlani appear to be just getting started.

Wilson, a first-year student at UCLA, is studying philosophy.“I want to be able to claim that I’m doing good for fellow men and women everywhere, and without really studying what good is in a systematic manner, I don’t really think I can make that claim for myself,” he says.

Al-Adlani has one brother studying in the US, while his parents and his six other siblings are struggling to hold their lives together in Sanaa, much of which is now crumbling. He is helping get the text-message course to people there, and plans to major in public administration. “I want to hold a high position … and try to help the underprivileged people in my country,” he says.

And Ioffe, the son of immigrants, already has a reputation as a mover and shaker at Babson, a campus teeming with entrepreneurs. “He saw a need … and he did something about it. That’s just the way he is. These needs are not theoretical to him,” says Professor Fleischmann.

Some would call Ioffe’s idealism unrealistic, but Fleischmann doesn’t. “He has a vision of young people around the world taking charge of their lives, in often unfavorable circumstances," he says, “and that is a worthy goal.”

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Why Trump cannot merely contain Iran

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Much of President Trump’s “America first” approach to foreign affairs has focused on what he opposes, such as the United States being overextended as a superpower. Yet US presidents must be careful what they oppose, for they may later be asked what they favor. Real power is affirmative of certain values and not simply a matter of playing defense. Now that he's ripped up the Iran nuclear pact and sowed uncertainty, what is Mr. Trump’s vision for the Middle East? Iran’s fingers run through many conflicts. Shaping a regional security system – a sustainable order in the Middle East – will take leadership in values, not just military might and economic sanctions. The best way to contain Iran would be to have a region committed to individual liberties and democracy. The legacy of the US in the Middle East still demands it be a responsible player. Much of the responsibility lies in helping the region define a better future for itself, not only fending off the latest threat.

Why Trump cannot merely contain Iran

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Reuters
In a May 8 ceremony at the White House, President Donald Trump holds up a signed proclamation declaring his intention to withdraw from the Iran nuclear agreement.

As he promised as a candidate, President Trump has taken the United States out of the 2015 nuclear deal with Iran. The pact certainly came with potential flaws in containing Iranian weapons. Yet the withdrawal poses an even bigger issue: Will the US now bring a new order to the Middle East, one that can deal with Iran in other ways?

Much of Mr. Trump’s “America first” approach to foreign affairs has so far focused on what he opposes, such as the US being overextended as a superpower. On that point, he has strong support. Nearly half of Americans agree that the US needs to “pay less attention to problems overseas and concentrate on problems here at home,” according to a Pew survey last July.

Yet US presidents must be careful what they oppose, for they may later be asked what they favor. Real power is affirmative of certain values and not simply a matter of playing defense.

Now that he has ripped up the nuclear pact and sowed great uncertainty, what is Trump’s vision for the Middle East, one that would help curtail Iranian adventurism and solve other issues that make it the world’s most volatile region? Iran’s fingers run through many conflicts, forcing the bigger question of how to create a regional security system. Can the US eventually bring Iran into a new order rather than merely contain it?

To his credit, Trump has continued the fight to defeat Islamic State, tried to restart the Israeli-Palestinian peace process, and used force against Syria to curb its use of chemical weapons. The US Navy still guards an area that exports nearly half of the world’s oil. Trump also backs reforms in Iraq and Saudi Arabia that are curtailing religious aggression and meeting the aspirations of young people.

Shaping a sustainable order in the Middle East takes leadership in values, not just the raw power of military might and economic sanctions. The best way to contain Iran would be to have a region committed to individual liberties and democracy. What role does the US have in achieving that goal?

One bit of advice that Barack Obama gave Trump during their transition in 2017 was that the office of the presidency is bigger than any one president. Each new chief executive, no matter what views he may bring in, has quickly discovered he is bound by a legacy of values, laws, and traditions. The long legacy of the US in the Middle East still demands it be a responsible player. And much of the responsibility lies in helping the region define a better future for itself, not only fend off the latest threat.

A Christian Science Perspective

About this feature

Each weekday, the Monitor includes one clearly labeled religious article offering spiritual insight on contemporary issues, including the news. The publication – in its various forms – is produced for anyone who cares about the progress of the human endeavor around the world and seeks news reported with compassion, intelligence, and an essentially constructive lens. For many, that caring has religious roots. For many, it does not. The Monitor has always embraced both audiences. The Monitor is owned by a church – The First Church of Christ, Scientist, in Boston – whose founder was concerned with both the state of the world and the quality of available news.

More than just a feel-good day

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What started off for today’s contributor as an experience of being alone and desperate turned into a time of discovering just how tangible, practical, and familiar God’s love truly is.

More than just a feel-good day

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Today's Christian Science Perspective audio edition

There are many ways a parent’s love can be expressed. I’ve certainly known men and women who have never raised children yet don’t hesitate to show considerable love to youngsters.

In other words, selfless love isn’t exclusively about people of a particular gender or those who have children. It is about expressing spiritual qualities such as patience and joy in attending to those around us. And because God, who is Love itself, created us, we all have the ability to express and feel God’s love, wherever we may be.

Mary Baker Eddy, an earnest student of the Bible who discovered Christian Science in the 19th century, saw the nature of God as both Father and Mother, our spiritual Parent. If we think of our Father-Mother God as meeting our needs, rather than feeling we are dependent on other people, we come to see that we can’t be denied God’s love. Divine Love is universal, inclusive, and ever present, the source of all the love there is – the Father-love providing and defending, the Mother-love nurturing and comforting. We are never separated from this love! Although it may not always be expressed in the person or place we expect, there is no stopping God’s love from finding us when it’s needed.

I saw this when I was a young woman and fell “down the rabbit hole,” so to speak. I found the courage to leave a dangerous living situation, but I hadn’t had time to plan ahead. I was alone, wearing dirty clothing, and desperate. I managed to call my parents, who began putting together a plan to fly me home to them. I hitched a ride to the airport, with no idea whether I would be able to board a plane before the day was through.

Spying a distant corner of the crowded airport (feeling that I was not even worthy of a chair), I flopped down on the floor. Then I heard my name called over the intercom, so I walked over to the counter. A man – someone I had never met – was standing there with a warm and compassionate smile. He was a local Christian Science practitioner, someone whose full-time job is to help people through prayer. My father had reached him earlier and asked that he pray about the situation.

As he’d been praying, he’d felt inspired to come to be with me in person. He had driven to the stables where I’d been working, where he was told I was at the airport. He even bought me food (it had been at least a day or so since I had eaten). I still marvel at how this stranger put his prayers into action for a straggly teenager that day!

In essence, though, he wasn’t a stranger. I hadn’t seen him before, but the love he expressed felt very familiar. If I’d closed my eyes I would have thought I was with my mom or dad, not some man I had never met. I appreciated his kindness, but it was more than that. I sensed that behind it was a spiritual love impelled by God. It was pure, the way God’s love always is. I felt divine Love holding me together like a warm embrace and reaching right through me, without judging me. The ideas the man shared weren’t just words; they became spiritual anchors during this trip and many times after. His assurance that I was worthy of being loved was an affirmation that God was my forever Father, Mother, and companion. I knew I was safe.

As my name was called to board a flight a few hours later, we said our goodbyes. He reminded me that God was right where I was, loving and providing for me. Boarding the plane, I immediately saw more evidence of God’s love while settling into my seat next to a woman who, smiling from ear to ear, not only told me how much she loved horses, but offered me food and drink.

Above all, though, this wasn’t just a feel-good day. An enduring sense of our Father-Mother God’s boundless, healing love stayed with me, and my situation turned around completely.

I still cherish that day in the airport and have continued to see this same love generously shared over the many years since, proving time after time to me that Love isn’t personal; it is truly divine.

A message of love

Remembering victory and loss

Dmitri Lovetsky/AP
People in St. Petersburg, Russia, carry portraits of their ancestors, participants in World War II, as they celebrate on May 9 the 73rd anniversary of the defeat of the Nazis in World War II. Some 1 million people walked in a march called the 'Immortal Regiment.'
( The illustrations in today’s Monitor Daily are by Karen Norris and Jacob Turcotte. )

A look ahead

Thanks for spending time with us today. Looking ahead, we're working on a story about a conundrum facing California cities: How is it possible to spend hundreds of millions of dollars to solve a problem – homelessness – and wind up with little to show for it? 

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