preemption – Overlawyered

August 20 roundup

Walter Olson — Tue, 20 Aug 2019 09:59:59 +0000

UK: “British newspapers can legitimately mock parrots and compare them to psychopaths, the press regulator has ruled, after an unsuccessful complaint that the Daily Star misrepresented the emotions of a pet bird.” [Jim Waterson, Guardian]
Cato scholars regularly crisscross the country talking to students. Book one (maybe me) at your campus this Fall [Cato Policy Report]
Local-government preemption, single-use plastics, lemonade stands, Sen. Cardin on redistricting: my new post at Free State Notes recounts my experience attending the Maryland Association of Counties summer conference;
Can a police officer be criminally prosecuted for refusing to risk his life to stop a school shooter? [Eugene Volokh on Marjory Stoneman Douglas High School case]
I’m quoted on press freakout over new proposed religious liberty regs: “This is a narrowly drawn rule for a minority of federal contractors. It’s really not that radical and not that new.” [Brad Palumbo, Washington Examiner]
Beware proposals that would transform antitrust law into general bludgeon for avenging all sorts of grievance against big business [Glenn Lammi, WLF]

Tags: antitrust, Cato Institute, Maryland, preemption, redistricting reform, religious liberty

August 20 roundup is a post from Overlawyered - Chronicling the high cost of our legal system

Pharmaceutical roundup

Walter Olson — Fri, 09 Aug 2019 09:59:28 +0000

Starting in mid-1990s German doctors began writing many more opioid prescriptions. But addiction and overdose rates did not skyrocket. What made Germany different? [Jeffrey Singer, Cato; Jacob Sullum, Reason]
Will the Supreme Court’s unanimous ruling in Merck v. Albrecht manage to clarify preemption law? [Beck, Drug & Device Law and more; Jonah Knobler, Washington Legal Foundation]
Money didn’t go into state treasury: “Oklahoma Lawmakers not so Happy About Purdue Pharma Settlement” [Sean Murphy, Insurance Journal, more] “Nevada AG’s old law firm can make up to $350 million on his opioid lawsuit” [Daniel Fisher, Legal Newsline] “List of firms handling Louisiana’s opioid lawsuit balloons to 17, including politically connected ones” [Sam Karlin, The Advocate] Richard Epstein on opiate litigation [Ricochet]
National Vaccine Injury Compensation Program: “Where Calls for Overturning Bruesewitz v. Wyeth Go Wrong” [Dorit Reiss, Petrie-Flom “Bill of Health”]
“Drug lawsuit ads are scaring seniors to death” [P. Roosevelt Gilliam III and Susan Peschin, STAT]
Senate Republicans file bill to fast-track FDA consideration of over-the-counter birth control pill [Elizabeth Nolan Brown]

Tags: FDA, Germany, Louisiana, Nevada, Oklahoma, opioids, pharmaceuticals, preemption, Supreme Court

Pharmaceutical roundup is a post from Overlawyered - Chronicling the high cost of our legal system

Multi-district litigation: time for real rules

Walter Olson — Tue, 30 Apr 2019 04:05:46 +0000

A milestone was reached in March: over half of all cases “currently open in the federal judicial system now are contained in multi-district litigation.” [James Beck, Lexology] And that poses a problem if you believe in uniform, stable, and knowable procedures for handling cases:

As we’ve discussed many times before, the ordinary Federal Rules of Civil Procedure apply sporadically, if at all in MDLs. Likewise, some MDL judges apply Daubert rigorously, and others do not. Some MDLs are disposed of on the basis of federal preemption, while other MDL judges seem never to have granted a preemption motion in their careers. Appellate opportunities are few and far between, and almost always arise when plaintiffs lose, since defense losses don’t generate immediately appealable orders. The current MDL system makes the federal judicial system resemble the baroque Holy Roman Empire – an agglomeration of hundreds of feudal principalities, feigning allegiance to one set of laws, but in reality operating more or less independently – with some of those margraves and palatine counts wielding rather despotic power.

Like some wasps do to caterpillars, agglomerations of “plaintiff steering committees,” assisted by shadowy funded media solicitors, have parasitized the federal judicial system, converting it into a system not for justice, but for converting mass solicitations into mass settlements without the merits of 99+% of the filed “inventory” ever being examined.

And because of the rise of the defendant technique known as “pre-service removal,” Beck says, the share of cases in MDLs is likely to rise further.

Tags: Daubert, preemption, procedure

Multi-district litigation: time for real rules is a post from Overlawyered - Chronicling the high cost of our legal system

Liability roundup

Walter Olson — Thu, 03 Nov 2016 10:41:58 +0000

“Big Bucks and Local Lawyers: The Increasing Use of Contingency Fee Lawyers by Local Governments” [Michael Maddigan, U.S. Chamber Institute for Legal Reform]
Class actions: “The New Rule 23 Is Available for Public Comment,” comment period ends Feb. 15 [Andrew Trask]
Aircraft Owners and Pilots Association urges Supreme Court to review Third Circuit case approving liability for FAA-approved part design [AOPA, Sikkelee v. Precision Airmotive Corp.]
“An FCC ban on arbitration of privacy claims would be the anti-consumer-protection approach” [Geoffrey Manne & Kristian Stout, Truth on the Market]
Montana case could bypass Daimler limits on state-court jurisdiction in cases under the Federal Employers’ Liability Act, Washington Legal Foundation urges certiorari [BNSF v. Tyrrell]
Insurers brace for new tilt of adverse doctrine as American Law Institute mulls Restatement of the Law of Liability Insurance [Nicholas Malfitano, Legal Newsline/Forbes]

Tags: arbitration, attorneys general, aviation, class actions, insurance, law enforcement for profit, preemption

Liability roundup is a post from Overlawyered - Chronicling the high cost of our legal system

Workplace law roundup

Walter Olson — Tue, 10 May 2016 04:05:11 +0000

Obama pay reporting rules: “Forget for a moment that the whole purpose [is] to provide litigation attorneys a database they can mine to legally harass businesses. The reporting requirements here are incredibly onerous.” [Coyote, earlier here and here]
This seems so French: “Man Sues Former Employers for Boring Him” [Atlas Obscura, Paris; but compare 1994 Canadian story of attorney Paul Ebbs]
Second Circuit: managers, supervisors can be individually liable for Family and Medical Leave Act violations [Daniel Schwartz, Jon Hyman] Can one of those managers dismiss an employee who’s exhausted the allotted FMLA leave and not come back? Given the presence of the ADA in the background, you might have to guess [Schwartz]
Invincible myths of the pay gap [Robin Shea, Hans Bader/CEI, Claudia Goldin 2014 via Marc Andreesen, earlier]
Yes, a legislature does advance important state interests when it pre-empts local employment regulations [Hans Bader, CEI, on one element of North Carolina HB 2 law, on which earlier]
Here come “ban the box” bills restricting private, not just public, employer inquiries into criminal records of job applicants [Daniel Schwartz, Connecticut; Aabid Allibhai, On Labor]

Tags: criminal records and hiring, preemption, sex discrimination, workplace

Workplace law roundup is a post from Overlawyered - Chronicling the high cost of our legal system

Supreme Court and constitutional law roundup

Walter Olson — Thu, 28 Jan 2016 05:05:41 +0000

More views on Article V convention to propose constitutional amendments [Glenn Reynolds/USA Today, Mark Pulliam/Liberty and Law, Ashley Balcerzak, Center for Public Integrity with emphasis on conservative-vs.-conservative battles; my take]. I may be debating the idea in St. Louis March 22, watch for more details;
As part of wrongheaded efforts at tribalization of native Hawaiians, state of Hawaii keeps trying to hold racially discriminatory elections [Ilya Shapiro/Cato, earlier here, etc.]
Taking drug preemption case would enable Court to clarify application of Wyeth v. Levine [WLF]
“The Rise of Judicial Review for Economic Liberty” [John McGinnis]
“Supreme Court To Rule on ‘Implied Certification’ False Claims Act Theory” [Beck quoting James Martin, Colin Wrabley, M. Patrick Yingling of Reed Smith on Universal Health Services, Inc. v. United States ex rel. Escobar]
Court should review Oklahoma license plate case in which Tenth Circuit applied less protective “symbolic speech” standard [Ilya Shapiro and Jayme Weber, Cato]
“The Tetzlaff Aftermath: Discharging Student Loans In Bankruptcy Might Be Easier Than We Thought” [Shannon Achimalbe, Above the Law]

Tags: Article V, constitutional law, Hawaii, preemption, Supreme Court

Supreme Court and constitutional law roundup is a post from Overlawyered - Chronicling the high cost of our legal system

Medical roundup

Walter Olson — Tue, 19 Jan 2016 05:05:10 +0000

“No, Donating Your Leftover Tissue To Research Is Not Like Letting Someone Rifle Through Your Phone” [Michelle Meyer answers “Henrietta Lacks” author Rebecca Skloot; related, Richard Epstein/Hoover]
“Women Should Not Have to Visit a Doctor for Birth Control” [Jeffrey Singer, Time/Cato]
Lawyer ads can scare TV viewers into discontinuing medically indicated therapies. But is more regulation the right answer? [reform group Sick of Lawsuits]
Johnson & Johnson followed federal government’s own advice on labeling a drug, and got slammed by a jury in consequence [WSJ editorial]
U.S. opinion resistant to ratifying treaties that would create an international-law right to health care, so how about smuggling it in via congressional/executive agreement? [Nicholas Diamond, Harvard “Bill of Health”]
Denmark, like other Scandinavian countries and New Zealand, has replaced malpractice suits with iatrogenic injury compensation scheme [Pro Publica]
Has liberalized patient access to opioids been a net harm? Study suggests no [Tyler Cowen]

Tags: chasing clients, Denmark, FDA, international human rights, medical malpractice, opioids, pharmaceuticals, preemption, science and scientists

Medical roundup is a post from Overlawyered - Chronicling the high cost of our legal system

Gov. Brown vetoes anti-arbitration bill

Walter Olson — Sat, 17 Oct 2015 20:16:56 +0000

In a lawyer-stimulus move that incidentally trashed freedom of contract, the California legislature passed a bill that would have virtually banned arbitration of workplace disputes that has been agreed on in advance of a dispute. But California Governor Jerry Brown has now vetoed it, arguing that the research on the effects of arbitration is still inconclusive, that the state has means of regulating it short of a ban, and that the Supreme Court is currently considering in two cases whether California law already improperly restricts arbitration in violation of the Federal Arbitration Act, an objection that could be lodged against the new enactment as well. [Carl Larson, Saqui Law Group]

Tags: arbitration, California, Jerry Brown, preemption

Gov. Brown vetoes anti-arbitration bill is a post from Overlawyered - Chronicling the high cost of our legal system

NYC to carwashes: unionize or else

Walter Olson — Fri, 03 Jul 2015 15:17:49 +0000

A new law in New York City aims to close car washes that don’t unionize, and workers’ own wishes in the matter would appear to be irrelevant. The bill would “requir[e] car wash owners to purchase a $150,000 surety bond to operate in city limits. … [But] businesses with collective bargaining agreements with unions in place only need $30,000 coverage.” [F. Bill McMorris, Free Beacon]

Tags: labor unions, NYC, preemption

NYC to carwashes: unionize or else is a post from Overlawyered - Chronicling the high cost of our legal system

Supreme Court and constitutional law roundup

Walter Olson — Fri, 01 May 2015 04:05:19 +0000

Polls, not chancy politics of Justice-watching, represent surest hope for gay-marriage supporters [me in New York Daily News]
“A reasonably good week for the Fourth Amendment” [Jonathan Blanks, Cato on Rodriguez v. U.S. on prolonged traffic stops, 6-3 SCOTUS, and from the D.C. Circuit, Janice Rogers Brown’s concurrence in Gross v. U.S., on rationale for D.C.’s gun sweeps]
David Bernstein, who has done so much to enrich our understanding of Lochner v. New York, hears from Mr. Lochner’s great-granddaughter [Volokh Conspiracy]
Armstrong v. Exceptional Child Center: Supremacy Clause doesn’t provide implied private right of action [William Baude, SCOTUSBlog; James Beck (implication for product liability); from the losing side, Steve Vladeck/Prawfs]
Please, SCOTUS, kill off for good the awful Calder v. Jones “effects” test for personal jurisdiction [David Post] “We’re Not in Kansas: No General Jurisdiction After Bauman” [Steven Boranian, Drug and Device Law]
Noah Feldman, for one, isn’t buying Toobin’s latest sanctimonious swipe at Scalia [Bloomberg View]
Usage of commas in famous first line of Pride and Prejudice can shed light on how to read Constitutional guarantee of right to keep and bear arms [Eugene Volokh]

Tags: constitutional law, Fourth Amendment, guns, preemption, procedure, same-sex marriage, Supreme Court

Supreme Court and constitutional law roundup is a post from Overlawyered - Chronicling the high cost of our legal system