October 8, 2008

Justices pummel FTC in "light" tobacco action

After years and even decades during which the Federal Trade Commission had reason to know there were big problems with its scoring for tar and nicotine, yet passively approved the continued use of the numbers, the commission and the Justice Department now claim to have been practiced upon by the wiles of the tobacco industry. Justice Alito termed the commission's position "incomprehensible", while Justice Scalia said, "When did the Commission know this stuff? I had a case when I sat on the Court of Appeals, so it had to be before 1984...It's been general knowledge for a long time, and the FTC has done nothing about it." More on the Altria Group v. Good argument at SCOTUSBlog and at Legal Times (Tony Mauro).

September 11, 2008

"Fairness" vs. "What's in the Constitution"

Some disturbing poll numbers on public views of the Supreme Court's role (more).

August 13, 2008

Preemption, the Congressional maneuvers

Below we note today's Wall Street Journal article, "Plaintiffs' Lawyers Fight Restrictions On Product-Liability Suits," a good primer on the political and lobbying battles over preemption, i.e., federal regulations that preempt state laws and prevent tort claims in state courts. The Journal's Law Blog also looks at the issue and directs the reader to the Journal's editorial today, "Devices for Lawyers." The opinion piece assesses the move in Congress to overturn the Supreme Court's decision in Riegel v. Medtronic, a medical preemption case.

The Court's decision makes sense for many reasons, not least to avoid creating a sort of double-jeopardy for companies -- first having to run the FDA approval maze, then allowing a nationwide quilt of different laws and standards to second-guess that approval. In 1976 Congress passed the Medical Device Amendments, establishing a national standard with express pre-emption language barring states from imposing their own requirements.

The Supreme Court decision nonetheless sent up yowls of rage from the likes of Democratic House baron Henry Waxman, who said the decision "strips consumers of the rights they've had for decades." Who writes this stuff for Henry? Far from representing a radical departure in the law, the Court's reasoning upheld what had become a common opinion in the federal court system. In half a dozen holdings, federal circuit courts had already ruled in favor of pre-emption, covering states from Texas to Illinois to Pennsylvania.

What Waxman really wants, the Journal opines, is to "restore is the trial lawyer bingo that can net jackpot jury awards while wreaking havoc on national standards." The vehicle of restoration is the Medical Device Safety Act, introduced in the House by Rep. Frank Pallone (D-NJ) as H.R. 6381, and in the Senate by an absent Sen. Kennedy (D-MA) as S. 3398. You could almost hear the American Association for Justice shouting "Bingo!"

More on Medtronic and preemption here.

August 4, 2008

Putting the boot to preemption

Acting on behalf of the ailing Sen. Ted Kennedy (D-MA), Sen. Pat Leahy (D-VT) on July 31 introduced legislation to overturn the U.S. Supreme Court decision in Riegel v. Medtronic, the Medical Device Safety Act of 2008, S. 3398. The bill is companion to H.R. 6381, and another attack on the principle of federal premption.

The Kennedy news release and bill summary and Sen. Harkin's statement (scroll down from here) both chastise medical device manufacturers for faulty manufacturing, failing to note that the heart catheter in the Riegel lawsuit was misused by the doctor. Both also claim the Supreme Court erred in reading Congressional intent as precluding litigation in state courts. Yet creation of a federal regulatory regime as a more efficient and ultimately safer system than state-based regulation was raison d'etre of the Medical Device Amendments of 1976, right?

The American Association for Justice issued a news release, nuanced as always, quoting new AAJ President Les Weisbrod: "Right now we have a dangerous system of careless corporations, complete immunity and consumers going unprotected. This bill would fix the current system by revoking the 'get out of jail free' card that medical device manufacturers were wrongly awarded." Yep, and replace it with a big Chance Card.

August 1, 2008

Souter's "icky Exxon" footnote

Ever since the high court's punitive damage decision in Exxon Shipping, commentators have been abuzz about Justice Souter's footnote disclaiming reliance on a major set of studies of jury behavior on the grounds that they had been in part financially supported by Exxon, a party in the case. The studies in question -- which had drawn on the participation of top-ranked academics including Chicago's Cass Sunstein -- had been ferociously attacked in the press as tainted by the funding, even though support of similar research by interested parties hardly counts as in any way unusual; in particular, earlier rounds of widely cited research on punitive damage issues were supported by plaintiffs' lawyer interests. Indeed, litigation-relevant research is carried on (and is taken under court consideration) in a variety of other settings every day with support from litigants.

Justice Souter appears to agree with the basic thrust of the jury-predictability studies. So why did he find it necessary to hold them at a distance as if with tongs, to avoid cooties? We may never know for sure, but Ron Coleman at Likelihood of Confusion offers what seems at least plausible psychological speculation.

July 26, 2008

Supreme Court picks

Stuart Taylor, Jr.'s cover story in the new National Journal looks at the high court appointments one might expect from a President Obama or McCain. Obama: Elena Kagan, Cass Sunstein, Merrick Garland, Hillary Rodham Clinton, Sonia Sotomayor, Eric Holder Jr., Diane Wood. McCain: Larry Thompson, Maureen Mahoney, Michael McConnell, Lindsey Graham, James Comey, Paul Clement.

The Democratic composition of the Senate might act as a brake on a President McCain's range of choice in selecting nominees, while a President Obama would likely have a freer hand:

Obama, who voted against both [John Roberts and Samuel Alito] during their Senate confirmation hearings, has said that they and the Court too often side with "the powerful against the powerless" and lack "empathy" for ordinary people. The presumptive Democratic nominee exudes determination to move the Court sharply to the left if he gets the chance.

July 23, 2008

Senate Judiciary, decrying 'pro-business' Supreme Court

The Senate Judiciary Committee has begun its hearing, "Courting Big Business: The Supreme Court's Recent Decisions on Corporate Misconduct and Laws Regulating Corporations." So far, only Chairman Leahy's statement is online, and it embraces the expected criticisms on cases such as Ledbetter, Stoneridge and especially Exxon Valdez. He also lays into the court for "blind devotion to corporation arbitration schemes." Leahy's statement also includes a political narrative:

The Supreme Court has demonstrated its increasing willingness to overturn juries who received the factual evidence and weighed the arguments. Nothing is more fundamental to the American justice system than our trust in the wisdom and judgment of ordinary Americans who serve on juries.

UPDATE: The prepared testimony is now available. Osa M. Schultz provides the perspective of a very angry Alaskan harmed by the Exxon Valdez spills, and she wants high punitive damages. Patricia Ann Millett, a former attorney in the Office of Solicitor General, gives a dispassionate assessment of the Court's opinions and judicial alliances on preemption, arbitration, employment cases and punitive damages.

The target to come under the heaviest fire today was mandatory pre-dispute arbitration, as Harvard Law Professor Elizabeth Bartholet condemned its transformation into a mechanism biased toward corporate interests. In her lengthy prepared testimony, Bartholet cites her experience as an arbitrator dealing with consumer credit card cases for the National Arbitration Forum.

Judging by the witnesses, testimony and his opening remarks, Chairman Leahy regarded today's hearing as especially useful in building the Congressional case against arbitration. The legislation with the most prospects is S. 2838, attacking arbitration in nursing home contracts; the House version, H.R. 6126, is moving quicker, though, having been reported out of the subcommittee last week.

MORE: RTTNews carries a straightforward account of the hearing here. Mayer Brown had a legislative update last week on the anti-arbitration bills moving through Congress, focusing on the effects on international arbitration.

July 20, 2008

Senate Judiciary to review 'pro-business' Supreme Court

NOTICE OF COMMITTEE HEARING

The Senate Committee on the Judiciary has scheduled a hearing on "Courting Big Business: The Supreme Court's Recent Decisions on Corporate Misconduct and Laws Regulating Corporations" for Wednesday, July 23, 2008 at 10:00 a.m. in Room 226 of the Senate Dirksen Office Building.

No witness list yet.

Given last week's Capitol Hill rally by liberal women's groups, the Ledbetter decision could certainly be one of the rulings to be criticized.

UPDATE: Guessed wrong, looks like. The witnesses are now listed:

• Osa M. Schultz
, a plaintiff in the Exxon Valdez litigation.
• Professor Elizabeth Bartholet, Morris Wasserstein Professor of Law, with extensive arbitration and mediation expertise.
• Patricia Ann Millett, partner, Akin Gump Strauss Hauer & Feld LLP, who heads the firm's Supreme Court practice.

July 13, 2008

In Oregon and Michigan, ballot politics

Two items from this weekend's reporting:

• The Statesman-Journal reports: Failing to make the fall ballot for lack of petition signatures are two proposed initiative measures, one to limit lawyers contingency fees and the other to make it easier to punish attorneys for filing "frivolous" actions. The measures were sponsored by the head of FreedomWorks in Oregon and Republican Party Vice Chairman Russ Walker. The Politicker blog declares the Oregon Trial Lawyers Association a political winner for the week, commenting: "Sending a team of trial lawyers down to Salem to police the signature counting, it looks like they are off the hook for a ballot measure aimed at cutting their salaries."
• John Fund of the Wall Street Journal highlights the proposed Michigan constitutional amendment (see below) as an example of left/liberal/progressive activism in a column, "Obama's Liberal Shock Troops." Fund writes: "There is also a direct attack on the judiciary. The initiative reduces the state's Supreme Court to five members, down from seven, and the state's Court of Appeals to 20 judges, down from 28. Saving money appears not to be the motive: Democratic Gov. Jennifer Granholm could appoint 10 newly created circuit court judges. The net result would be that conservatives would lose control of the state Supreme Court, because the two justices who would be removed would be the last two appointed by GOP Gov. John Engler. Of the eight appeals court judgeships that would be eliminated, six are now held by people with GOP backgrounds."

And since we're on the WSJ's op-ed page, here's another Fund column on Justice Scalia's recent interview with Britain's Daily Telegraph, "Let's Be Rid of Half the Lawyers."

June 29, 2008

End of the term wrap-ups

The week ended with the usual wrap-up stories about the just-completed term for the U.S. Supreme Court. Dow Jones especially had a good review: "Supreme Court Term Is Mixed For Business, But Wins Were Big": "The U.S. Supreme Court handed the business sector a mix of wins and losses in the 2007-2008 term ending Friday, but when business did win, it won big." The opinions Dow-Jones highlights are Stoneridge, Riegel v. Medtronic and the Exxon Valdez case. More...

• Associated Press: Long quiet, justices end their term with a growl
• Associated Press: Summaries of leading Supreme Court cases
• USA Today: Paradox marks Supreme Court term
• Los Angeles Times editorial: The evolving Supreme Court
• New York Times, Linda Greenhouse: On Court That Defied Labeling, Kennedy Made the Boldest Mark
• Legal Times, Tony Mauro: Despite June Fireworks, a Calmer Supreme Court Term
• Christian Science Monitor: A Less Deferential High Court

• The Justices issued 67 merits opinions after argument this term, the lowest number since the 1953-54 Term
• The Justices decided 71 cases in total this term, the lowest number of decisions in recent memory.
• Five-to-four rulings represented 17 percent of the term's opinions; last year's percentage was 33 percent.