- Automakers fight Bruce Braley/trial lawyer effort on Capitol Hill to overturn NHTSA preemption [Dow Jones, WSJ Law Blog, David Freddoso/Examiner, Carter Wood and more at PoL]
- Twombly/Iqbal can curb sue-’em-all, sort-’em-out-later charges of civil conspiracy [Sachse/Drug & Device Law, earlier]
- Claim: Obama, Kagan, Sotomayor typify “postradical” law school generation [David Fontana, Chronicle of Higher Ed via Wasserman/Prawfs (counter: “there are a lot of us liberal doctrinalists out here …And students are learning that vision in law school”), Althouse (“Spare me! There are plenty of strongly liberal and lefty lawprofs and if you want theoretical ambition you can find it.”)]
- FTC report contemplates much wider federal intervention in media business [Jarvis/BuzzMachine, Tapscott/Examiner, Coyote, Steele/LEF, Stoll/Future of Capitalism, LA Times, ShopFloor, Jarvis/NY Post, Pethokoukis/Reuters, Suderman/Reason] Is scary McChesneyite “Free Press” making headway in administration? [Riggs, Daily Caller]
- “Law and Society Boycott Resolution Gets Arizona Immigration Law Wrong” [Chin, Prawfs]
- “Appeal of Crunch Berries Case Dismissed” [Lowering the Bar, earlier]
- “Senior U.N. official” demanding end to U.S. use of drones against Al Qaeda in Afghanistan also happens to be NYU lawprof [NY Times, 16th/last paragraph of story]
- Unintended consequences: 1932 cut in judges’ pensions changed Supreme Court history [Magliocca, ConcurOp]
- German law firm demands that Wikipedia remove true information about now-paroled murderers [EFF] More: Eugene Volokh.
- “Class Actions: Some Plaintiffs’ Lawyers Fed Up, Too?” [California Civil Justice]
- Drop that Irish coffee and back away: “F.D.A. Says It May Ban Alcoholic Drinks With Caffeine” [NYT]
- Profile of L.A. tort lawyers Walter Lack and Thomas Girardi, now in hot water following Nicaraguan banana-pesticide scandal [The Recorder; my earlier outing on “Erin Brockovich” case]
- Federalist Society panel on federalism and preemption [BLT]
- Confidence in the courts? PriceWaterhouseCoopers would rather face Satyam securities fraud lawsuits in India than in U.S. [Hartley]
- Allegation: Scruggs continuing to wheel and deal behind bars [Freeland]
- Not much that will be new to longtime readers here: “Ten ridiculous lawsuits against Big Business” [Biz Insider] P.S.: Legal Blog Watch had more lists back in June.
I may have a new job as what David Lat calls the “Class Action Avenger” and a new blog to go with it, but that doesn’t mean I won’t be speaking about more general legal reform issues. A Heritage Foundation panel on preemption, featuring Kyle Sampson, former NHTSA and DOT general counsel Jeffrey Rosen, and myself is now viewable online. It’s only fair to note that I cribbed a lot from Michael Greve’s Bradley Lecture on federalism (video), which I can’t recommend enough.
The plaintiff’s bar scores a big victory with a White House policy reversal on preemption. [Business Week].
- “Intellectual Easter egg hunt”: great Michael Kinsley column on Wyeth v. Levine and FDA drug preemption [Washington Post]
- Negligent for the Port Authority to let itself get bombed: “Jury Awards $5.46M to 1993 WTC Bomb Victim” [WINS, earlier]
- “How following hospital quality measures can kill patients” [KevinMD]
- Owner of Vancouver Sun suing over someone’s parody of the paper (though at least it drops the printer as a defendant) [Blog of Walker]
- Court dismisses some counts in Billy Wolfe bullying suit against Fayetteville, Ark. schools [NW Arkansas Times, court records, earlier here and here]
- Law bloggers were on this weeks ago, now Tenaha, Tex. cops’ use of forfeiture against motorists is developing into national story [Chicago Tribune, earlier here and here]
- Can hostile blog posts about a plaintiff’s case be the basis for venue change? [IBLS]
- Calls 911 because McDonald’s has run out of chicken nuggets [Lowering the Bar]
Now that its settled that every jury should be a new regulator deciding in hindsight whether label warnings should have been stronger, some who worry about the future of the drug business are inclined to feel nauseous. Resist that feeling, points out emergency room blogger White Coat: should your condition grow so severe as to call for medical attention, the arsenal of antiemetic treatments available to doctors keeps dwindling under the legal pressure.
After the Wyeth v. Levine argument, I worried that the Supreme Court might decide the case on such narrow grounds that it would do little good to confront the problem of trial-lawyer abuse. I now see I wasn’t nearly pessimistic enough.
We can put the nail in the coffin in the idea that this is a pro-business Supreme Court: the 6-3 Wyeth v. Levine decision is the worst anti-business decision since United States v. Von’s Grocery, 384 U.S. 270 (1966). Justice Thomas’s confused concurring opinion is especially disappointing, as it declares an abdication of the Supreme Court’s appropriate structural role to prevent individual states from expropriating the gains from interstate commerce.
Sell your pharmaceutical stocks now, because the Supreme Court just declared it open season on productive business. One should now fear the coming decision in the as-yet-to-be-briefed Clearinghouse v. Cuomo, and the effect that is going to have on an already battered banking economy, as well.
Beck and Herrmann have first thoughts, but are likely to be relatively quiet thereafter.
Update, as Walter points out in the comments, see also Andrew Grossman’s post at Point of Law, and the earlier coverage at that site by numerous authors, dating back to when the case first began making headlines.
Contrary to the suggestion of Justice Thomas, Dan Fisher, this is not a “victory for federalism” by any stretch of the imagination: federalism is a two-way street, and permitting states to impair interstate commerce through a litigation tax upsets the federalist structure of the Constitution. See, e.g., Epstein and Greve.
The Supreme Court rejected (h/t Beck/Herrmann) tobacco companies’ argument that the FTC’s use of the Cambridge Filter Method standard of measuring tar and nicotine impliedly preempted lawsuits against the tobacco companies for advertising their cigarettes using data from the Cambridge Filter Method standard of measuring tar and nicotine. The fact that the federal government disavowed preemption lends another data point in support of Professor Catherine Sharkey’s argument that the Court tends to defer to the Solicitor General’s position on preemption disputes. Justice Thomas’s dissent, which would undo the unworkable Cipollone plurality, appears to me to be the stronger argument, but it didn’t carry the Kennedy Five.
The fact pattern is the subject of numerous multi-billion dollar lawsuits against tobacco companies alleging that their sales of light cigarettes are fraudulent. The light-cigarette consumer fraud litigation still suffers from constitutional flaws relating to due process in aggregate litigation, but these remain to be resolved.
The Chicago lawprof discusses the pending Supreme Court case on implied pre-emption:
…it is folly to act as if the private lawsuits attacking FDA warnings just backstop a porous and lax FDA. Often those lawsuits add an unwanted deterrent against the sale of desperately needed drugs. That risk is multiplied by hyperventilated state tort law that, in many instances, is lopsidedly pro-plaintiff.
- Christopher Hitchens: once utopian electoral buzz wears off, nation’ll face pretty much same set of problems as before [Slate] #
- Business preparing to play defense in D.C. on 3 big battlefronts: labor/empt law, arbitration, preemption [NLJ] #
- Pretty neat, Google Reader now translates foreign-language blogs for you [SearchEngineLand h/t @mike_elgan] #
- @gideonstrumpet it’s one of the “laws” of blogging — very hard to predict beforehand which posts’ll draw the biggest traffic #
- “Lawyer Hausfeld Learned of Firing as Chairman From Note on Seat” [Securities Docket] #
- If transcript “is held face down and shaken, thousands of confusion flakes will drift to the ground like snowflakes” [Lowering the Bar] #
- Jamie Gorelick, mentioned as possible AG pick, would bring baggage [Althouse] #
- GM-Chrysler merger = idea that pair of boozers can fix drinking problem by getting married to each other [McArdle] #