- “The Impropriety of Punitive Damages in Mass Torts” [James A. Henderson Jr., forthcoming Georgia Law Review/SSRN via Stephen McConnell, Reed Smith/JD Supra]
- “Will SCOTUS Ruling Affect Philadelphia Court, Where 94% Of New Plaintiffs Are From Out Of State?” [Nicholas Malfitano, Penn Record/Forbes, earlier on Bristol-Myers Squibb v. Superior Court]
- Time for asbestos trusts to do what’s right [Christine Biederman, The Hill]
- “Google’s $8.5m class-action privacy payout goes to: Lawyers’ alma maters, web giant’s pals” [Kieren McCarthy, The Register on Ninth Circuit settlement approval]
- European Court of Justice should take lesson from American courts which after relaxing rigor of causality scrutiny, and seeing baseless payouts multiply, have since been on a Daubert rebound [Theodore Dalrymple, Law and Liberty; Marilyn Moberg and Kathryn Bond, Drug and Device Law]
- Law firm gold rush for opioids-recoupment suits continues as New York counties sign up [Steve Lieberman, Journal News (Rockland County, N.Y.]
My new Cato post applauds the Supreme Court for its 8-1 decision yesterday in Bristol-Myers Squibb v. Superior Court of California correcting the Ninth Circuit on the permissible extent to which California can reach out to hear lawsuits arising from controversies and litigants in other states. A couple of weeks ago a companion 8-0 decision from the court addressed similar issues from Montana in BNSF v. Tyrrell.
…in both instances — with only Justice Sonia Sotomayor still balking — the Justices made clear that some states’ wish to act as nationwide regulators does not allow them to stretch the constitutional limits on their jurisdiction that far. …
…the contemporary Court is keenly aware of the danger that the tactical use of forum-shopping will eclipse the merits in many categories of high-stakes litigation, turning potentially losing cases into winners through the chance to file them in a more friendly court.
That insight might prove significant at a time when forum-shopping has come to play a prominent role in high-profile ideological litigation—with conservatives running to file suit in the Fifth Circuit, liberals in the Ninth.
(& welcome readers from SCOTUSBlog, which rounds up other commentary on the decision)
The Supreme Court is set to hear oral argument Tuesday (today) on Bristol-Myers Squibb v. Superior Court and BNSF Railway Co. v. Tyrrell, enabling it to revisit its line of cases (especially Daimler AG v. Bauman, 2014) setting limits to state court jurisdiction. The recommendation in my new Cato piece: “for a united Court to say unambiguously, about its Daimler holding: we said it, and we meant it.”
More resources on the cases: SCOTUSBlog argument previews on Bristol-Myers and BNSF; Washington Legal Foundation on Bristol and BNSF; coverage of the Plavix mass litigation, of which the Bristol-Myers case is an outgrowth, in American Pharmacy News and by Sidley Austin associate Julia Zousmer in the Illinois Law Review. Earlier on Daimler here, here, etc. A case this term that presents entirely different legal issues, but also relates to forum-shopping, is the patent venue case T.C. Heartland v. Kraft Foods.
- I’ve written about Antonin Scalia’s role in the late 1970s and early 1980s as editor of Regulation magazine, and more references to his work there came up at several panels during the recent Federalist Society lawyers convention, all worth watching for their own sake: antitrust (with Judges Doug Ginsburg, Frank Easterbrook (mentioning Regulation at 16:00), et al.), administrative law (Eugene Scalia, same, at 4:25+), and statutory interpretation (Paul Clement, same, at 36:15); and see earlier on my question at the telecommunications panel;
- “Can States Forcibly Unionize Small Businesses?” [Ilya Shapiro and Frank Garrison on Cato certiorari petition in Jarvis v. Cuomo, building on Harris v. Quinn line of cases]
- High court will hear new cases on limits of personal jurisdiction [Bristol-Myers Squibb v. Superior Court, Tyrrell v. BNSF Railway Company, earlier on BNSF, and more from Michelle Stilwell, WLF on that case]
- SCOTUS hears oral argument in “Slants” derogatory trademark First Amendment case [Mark McDaniel and Meredith Bragg/Reason, Jacob Sullum, earlier]
- Court accepts case on patent venue that could threaten preferred forum-shopping supremacy of Eastern District of Texas [TC Heartland v. Kraft Foods Group, brief by 56 law and economics professors]
- Now taking senior status, Judge Diarmuid O’Scannlain has ranked among MVPs of federal bench in part through his skill at flagging error by his Ninth Circuit for high court review [Ethan Davis and Daniel Sullivan, National Review]