“…we [Judge Janice Rogers Brown and I] dress as Lillian Hellman and Yosemite Sam respectively.” — Michael Greve on his participation in the presumed conspiracy to restore the dreaded “Constitution in Exile” of pre-New Deal days. [Liberty and Law]
Soon-to-be Prof. Greve (he will be joining the George Mason law faculty after many years at AEI) was at Cato this week to discuss his remarkable new book, The Upside-Down Constitution. At the risk of damning with faint praise, I will say that his book is the most stimulating work I know of on the subject of federalism to have been published in my lifetime. If I could sum up his thesis, it would be that one of the past century’s gravest constitutional malfunctions has been that the states (not a misprint, he means the 50 states) have overrun their proper role in the constitutional scheme. More on his thesis here, here, and, on “Madison’s nightmare,” here. In all seriousness, I recommend The Upside-Down Constitution highly; although it’s demandingly complex in places, I can’t imagine reading it without one’s understanding of the constitution, and federalism in particular, being permanently changed.
Tagged as:
constitutional law,
federalism
Erie Railroad Co. v. Tompkins (1938) was the New Deal-era decision that directed federal courts to apply the law of the states in which they are located, and in so doing abolished a huge body of federal common law. In a new series of posts based on his book The Upside-Down Constitution, Michael Greve argues that Erie was wrongly decided and in practical terms a gigantic mistake that needs correcting. [Liberty and Law]
Tagged as:
federalism,
Supreme Court
In the earlier and sounder conception of federalism, local and national government were meant to check each other’s overweening power. Nowadays, unfortunately, the two often interact in a cooperative way to encourage bigger government at both levels, as Washington bribes the states to spend and regulate more. I explain at Cato at Liberty (& Damon Root, Reason).
Tagged as:
federalism,
regulation and its reform
- Popular proposal to curb Congressional insider trading (“STOCK Act”) could have disturbing unintended consequences [John Berlau, CEI "Open Market"] A contrary view: Bainbridge.
- Here’s Joe’s number, he’ll do a good job of suing us: “Some Maryland hospitals recommend lawyers to patients” [Baltimore Sun, Ron Miller]
- Bribing the states to spend: follies of our fiscal federalism, and other themes from Michael Greve’s new book The Upside-Down Constitution [LLL, more, yet more] “Atlas Croaks, Supreme Court Shrugs” [Greve, Charleston Law Review; related, Ted Frank]
- “… Daubert Relevancy is the Sentry That Guards Against the Tyranny of Experts” [David Oliver on new First Circuit opinion or scroll to Jan. 23]
- Goodbye old political tweets, Eric Turkewitz is off to trial;
- State laws squelch election speech, and political class shrugs (or secretly smiles) [George Will]
- Too bad Carlyle Group got scared off promising experiment to revamp corporate governance to curb role of litigation [Ted Frank, Gordon Smith] AAJ should try harder to use people’s quotes in context [Bainbridge]
Tagged as:
arbitration,
Baltimore,
campaign regulation,
Daubert,
expert witnesses,
federalism,
hospitals,
securities litigation,
Twitter
- First Amendment wins as SCOTUS strikes down violent-videogame ban [Ilya Shapiro, Hans Bader] Justice Scalia cites “Snow White” and “Hansel and Gretel” [Ann Althouse]
- More Wal-Mart v. Dukes analysis [Schwartz, Althouse, Trask, Fisher, Beck, Sergio Campos/Prawfs] And aftermath for the litigants and others: ABA Journal (Pelosi wants legislative fix), CLP (plaintiffs), Reuters (law firm that’s won hundreds of millions in class actions complains it’s sunk $7 million into the case), Ted Frank (responding to that), Bay Citizen (“Foundations Could Pull Plug on Wal-Mart Suit”).
- “Would the REINS Act Rein In Federal Regulation?” [Jonathan Adler, Regulation magazine (PDF)]
- “Hypotheses Are Verified By Testing, Not By Submitting Them To Lay Juries For A Vote” [David Oliver; Drug and Device Law on denture cream product liability suit]
- Clash between federalism and some med mal reform proposals could have implications for ObamaCare battle [John Baker, Daily Caller; earlier]
- Dan Snyder Gets a Taste of D.C.’s New Anti-SLAPP Law [Citizen Media Law, earlier]
- Court skeptical of testimony of lap dance expert [Legal Blog Watch]
Tagged as:
expert witnesses,
federalism,
First Amendment,
regulation and its reform,
videogames,
Wal-Mart v. Dukes
A case called Bond v. U.S., arising from an admittedly bizarre fact pattern involving a wife’s attempt to injure a romantic rival, provides an opportunity to test the limits of extension of federal criminal law into areas that would ordinarily serve as the occasion of state-level prosecution. The Cato Institute has filed an amicus brief urging a narrow view of the proper federal criminal role in the case, in pursuit of the view that the federal government is one of limited, enumerated powers. [Ilya Shapiro, Cato]
Tagged as:
Cato Institute,
crime and punishment,
federalism
- Judge blocks sweeping Obama administration ban on new offshore drilling [Roger Pilon, Cato] Some reasons judge may have found ban irrational [Lowry, NRO, scroll to reader comment; Gus Lubin, Business Insider] More on Jones Act waivers in the Gulf [Bainbridge, earlier]
- Connecticut AG Blumenthal launches investigation of Google Street View [Rick Green, Courant]
- Florida judge tosses out $10 million libel verdict against St. Petersburg Times [St. P.T.]
- Lawyer in British Columbia suspends practice after bizarre jury tampering charges [CBC]
- “Disclosed to death”: why laws mandating disclosure are so overused and overbroad [Falkenberg, Forbes on work of Omri Ben-Shahar and Carl E. Schneider, via PoL]
- Judge dismisses controversial Pennsylvania case against Johnson & Johnson over Risperdal marketing, Gov. Rendell had hired major donor to run suit on contingency [LNL, McDonald/NJLRA, earlier]
- Rick Hills vs. Ilya Somin on federalism and constitutional enforcement of property rights [Prawfsblawg, Volokh]
- Beware proposed expansion of Federal Trade Commission powers [Wood, ShopFloor]
Tagged as:
BP Transocean oil spill,
Canada,
Federal Trade Commission,
federalism,
Google,
juries,
Louisiana,
oil industry,
Pennsylvania,
pharmaceuticals,
privacy,
Richard Blumenthal
Ken at Popehat: “Let’s get this straight from the start: I’m in favor of anti-SLAPP statutes and vigorous legal protections for free speech. I’m just not convinced that federalizing libel law is the right way to go about it.” Earlier on the Cohen bill here.
Tagged as:
federalism,
libel slander and defamation
- 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.
Tagged as:
alcohol,
banana pesticide litigation fraud,
Dickie Scruggs,
Erin Brockovich,
FDA,
federalism,
Federalist Society,
Germany,
India,
preemption,
Thomas Girardi,
Wikipedia
Perhaps the most buzzed-about story while I was on vacation (I’m back now) was the frank acknowledgment by former Democratic Party chairman (and former physician) Howard Dean when asked why liability reform was omitted from the health care redesign. 
From the New York Times “Prescriptions” blog:
The man then asked why tort reform was not part of any health overhaul.
Dr. Dean replied that the more items in a big bill, the more enemies it will have. “The people who wrote it did not want to take on the trial lawyers in addition to everyone else,” Dr. Dean said.
Dr. Dean also said he believed that patients should be able to bring actions against health care professionals, but they should go to arbitration. Then the case could go to trial, he said, but the arbitration verdict should be submitted as evidence. Not much reaction to that either way.
Mr. Moran [Northern Virginia Congressman Jim Moran] then apologized to the man whose identity he had questioned and added his 2 cents about why tort reform was not part of any bill. He said if it were, such a bill would have to go through the judiciary committee, which he said was one of the most partisan in Congress and would never have reported it out.
Commentary: Mark Tapscott/Examiner, Washington Times, Darrin McKinney/ATRA, Dan Pero linking Tiger Joyce/Investors Business Daily, Charles Krauthammer/FoxNews.com via Carter Wood/PoL and NRO “Corner”, Fred Barnes/Weekly Standard.
Relatedly, Philip K. Howard writes on “Stonewalling Legal Reform“, citing a Jon R. Gabel piece in the Times that rebuts a much-touted-by-trial-lawyers Congressional Budget Office report minimizing the likely cost reductions from malpractice reform. From the American Spectator Blog, “Conservative Leaders on Costly Lawsuits and Health Care Reform“. And Ramesh Ponnuru at NRO reiterates his argument that while malpractice reform is a good idea, it shouldn’t be imposed on the national level by the federal government.
More: Jim Lindgren at Volokh Conspiracy skewers an appalling report on health care “myths” which received, but did not deserve, the imprimatur of Indiana University.
Tagged as:
Barack Obama,
federalism,
medical malpractice,
politics
- Liability protection for doctors, premised on “best-practices” medicine: a proposal to address the federalism difficulties [Bernstein/MacCourt, MI Center for Medical Progress, PoL]
- Fraud in immigration law victimizes both U.S. and aspiring immigrants [NYT]
- Paralyzed while tackling opponent, high school footballer now suing Barre, Vt. school system [Barre-Montpelier Times Argus]
- Memo to Sen. Edwards: voters forgave Grover Cleveland the paternity, but they do mind lies [Mickey Kaus]
- Issue in New Orleans case: defamatory to call tour guides “thugs”? [Times-Picayune]
- No more Lux et Veritas: Yale press
wimps out on Mohammed cartoons [NYT, Moynihan/Reason "Hit and Run", Steyn/NRO "Corner", Hitchens]
- More on NYC woman’s “wasted-tuition” suit against college [Mark Gimein, NY Mag via Genova, earlier]
- Do we really want to let CPSIA’s drafters within a mile of redesigning our health care system? [Inoculated]
Tagged as:
colleges and universities,
federalism,
football,
immigration law,
John Edwards,
libel slander and defamation,
medical,
medical malpractice,
New Orleans,
schools,
Vermont
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.
Tagged as:
constitutional law,
FDA,
federalism,
pharmaceuticals,
preemption,
Supreme Court,
Wyeth
As good an argument for the Class Action Fairness Act as any: Trial lawyers sued Compaq in Texas over an allegedly defective disk controller, though none of the plaintiffs had ever suffered a malfunction or a loss of data, alleging a violation of Texas consumer fraud law on behalf of a nationwide class. No dice: the Texas Supreme Court threw out the case, noting that Texas law did not permit the sort of nationwide class action contemplated by the plaintiffs. End of story? Nope: the same trial lawyers filed the same complaint again, this time in Oklahoma state court, and asked the Oklahoma state court to apply Texas law to a nationwide class. “Sure thing!” the court rubber-stamped–applying an ersatz version of Texas law rejected by Texas courts. The forum-shopping was able to extract $40 million in attorneys’ fees from a questionable coupon settlement, as an Overlawyered post noted August 6. The Summer 2008 issue of State Court Docket Watch includes my essay discussing why this is a constitutionally problematic set of decisions by Oklahoma courts–written before, though published after, the Anthony Caso analysis for WLF.
Tagged as:
Class Action Fairness Act,
class actions,
federalism,
forum shopping,
harmless lawsuits,
Oklahoma,
Ted Frank
*Blogroll, cont’d*
Other sites by our authors: Point of Law (Ted Frank, Walter Olson and others) / Ted Frank’s AEI Legal Center / Walter Olson home page / Our Facebook group
Law:
BlawgRev / Brennan Center / Briefcase (Ohio) / CalBizLit / ConsLw&Pol / Day / Decs & Exs / EvilHRLady / Genova / Goldman / ILR / LawBeat (Obbie) / Legal Ethics Forum / LexMonitor / Lexis Nexis Torts / Likel’d of Succ’s / MassTortLit / Miller, Maryland Injury / Nordberg / O’Keefe / OnPointNews / Perlmutter Schuelke / Prawfs / Scruggs scandal in Mississippi: Folo, YallPolitics as well as Rossmiller / Sui Generis (NY) / TortDeform / WorkplaceProf
And more law: AdamSmithEsq / ACSBlog / AJP / AGWatch / ArmsLaw / Bay / BLT / Bluestone / Cal Wage & Hr / Comm for Just / Complex Lit / Concur Op / Conglom / Counterfeit Chic / EmpirLS / Ernie the Atty / Friable Thts / Justia / Kranenburg / LawSites / LegalJuice / Legal Rdr / Legal Scholarship / Low’g the Bar / NAM / Ninomania / Ohio Employment / Opinio Juris / Petit / Pop Tort / Proof & Hrsy / QuizLaw / Sports Law / StonePosts / TrollTracker (now underground) / WAC?
Med: Cut to Cure / Dr. Wes / GruntDoc / HIPAA blog / MedProgToday / MedPundit (RIP) / MedRants / Orac / Pipeline / RangelMD / Seidel / SymTym / Throckmorton
General interest:
Discr’ns / Empire Center / Gawker / Jay P. Greene / Haspel / Housing Bubble / IRB / Dan Kennedy / Manh Inst / David Nieporent’s Jumping to Conclusions and Likelihood of Success / MindingCampus / NYObserver / NYT Board, Freak’cs, Lede, Opin’tor, Tierney / Pratie Place / Rauch / SalonBlogRep / Siegel on tobacco / Truth on the Mkt / Tushnet
Right:
Betsy’s / Bookwm Room / City Jrnal / Contentions / Flash Report (Calif.) / Kopel / Lileks / McLaughlin / Marria Deb / Massie / Moldbug / PowerLine / RightCoast / RightRbw / Steyn / Zincavage
Left:
Bogdanski / Drum / Edroso / Effect Measure / Lambert / LG&M / Mencimer / Mother Jones / Pump Handle / ReformNY / SadlyNo / Tobias / Wolcott
Libertarian:
Antipl’r / Brayton / Cafe Hayek / Cato-at-Lib’y / Chapman / Henley / Palmer / Stossel / Young
Odd:
Fark / News of the Weird / Our 404 / Lawyer jokes (About.com) / Spurious “Stella Awards”
Science/skepticism:
Hoax / Snopes / Myers / Unoff Dawkins / Free Inq / Rowe / Lehmann / Quackwatch / Secular Right Skept Inqr / Skeptic.com
This site’s reprinted articles library, with articles by authors Michael Fumento, Peter Huber, Walter Olson, and Jonathan Rauch.
Tagged as:
Daubert,
David Nieporent,
Facebook,
federalism,
HIPAA,
Mississippi,
Ohio,
tobacco
