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]
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]
- 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]
- Bad lawsuit on bad theory: “Cantor Fitzgerald, American Airlines Settle 9/11 Lawsuit” [Financial Advisor mag]
- New Jersey court: only golfer, not his companions, responsible for yelling “Fore” to warn of errant ball [TortsProf]
- “The New Lawsuit Ecosystem: Trends, Targets and Players,” 158-page report for Chamber of Commerce, topics include emerging areas of litigation (food class actions, data privacy); also lists leading plaintiff’s lawyers in various areas [Chamber’s Institute for Legal Reform]
- “Eleventh Circuit Stacks Deck Against Defendants in Never-Ending Engle Product Liability Litigation” [Cory Andrews, WLF]
- Beck vs. Prof. Chemerinsky on prescription drugs and pre-emption [Drug and Device Law]
- “Outrageous Court Decisions: O’Brien v. Muskin Corp.” [Schearer; above-ground pool dive defect claim, New Jersey 1983]
- New York rejects medical monitoring cause of action [Behrens]
I’ve got a new post up at Cato at Liberty on three important decisions for the business community decided today at the Supreme Court, two on employment law and one on pharmaceutical pre-emption: Vance v. Ball State on liability for supervisorial harassment, University of Texas Southwestern v. Nassar on mixed-motive retaliation, and Mutual v. Bartlett (more) on design default preemption for a generic drug. (& welcome Coyote, Point of Law, SCOTUSBlog, Taegan Goddard/WonkWire readers)
A WSJ editorial and news coverage have called attention to a case from the Alabama high court holding Pfizer liable for a drug it didn’t produce, namely a generic knockoff of its acid reflux drug Reglan. Michael Greve agrees that it’s daffy to allow such suits, but traces the problem to the U.S. Supreme Court’s popular (at least with the media) 2009 decision in Wyeth v. Levine, okaying state tort actions over federally approved labels — and cautions that any victories for regulated business on the issue of federal-state preemption tend to be temporary at best. More: Coyote, FedSocBlog.
After the quarter-century disgrace that is Proposition 65 litigation — run by and for lawyers’ interests, with no discernible benefit to the health of the citizenry — you’d think California voters would have learned a thing or two. But unless poll numbers reverse themselves, they’re on the way to approving this fall’s Proposition 37, ostensibly aimed at requiring labeling of genetically modified food, whose main sponsor just happens to be a Prop 65 lawyer. I explain in a new piece at Daily Caller. More coverage: Western Farm Press; Hank Campbell, Science 2.0; Ronald Bailey, Reason (& Red State).
More: defenders of Prop 37 point to this analysis (PDF) by economist James Cooper, arguing that 37 is drafted more narrowly than 65 in ways that would avert some of the potential for abusive litigation. And from Hans Bader: would the measure be open to challenge as unconstitutional, or as federally preempted?
Under the Federal Food Drug and Cosmetics Act (FDCA), drugs sold in the United States require an FDA-approved label—the elaborate, incomprehensible (to laymen) sheets you find inside every package. Every sentence is dictated by FDA requirements, down to the font and letter size. Violations of these requirements, and the sale of drugs without the label or a different label, are subject to very severe penalties. The statutory scheme operates to the explicit exclusion of any state regulatory (administrative) scheme. What Wyeth asks us to believe is that state juries may nonetheless hold drug manufacturers liable, for accidents caused by use in direct contravention of the federal label, on the grounds that the federally required label was inadequate. Meticulous compliance with federal requirements doesn’t preempt “failure to warn” liability under state common law.
James Beck explains and Orac has some strong views as well (“I’m afraid Justice Sotomayor borders on the delusional when she blithely proclaims that courts are so good at efficiently disposing of meritless product liability claims.”) More: Kathleen Seidel and footnotes.
P.S. But preemption does not carry the day in an automotive case, Williamson v. Mazda.
- Jack Park on Bruesewitz v. Wyeth vaccine preemption case at Supreme Court [Heritage]
- Incidentally happening to assure lawyers more access to work: Harvard’s Tribe devises “access to justice” initiatives for Obama administration [BLT]
- New Haven cops accidentally photograph themselves deleting video of an unlawful arrest [Balko]
- How elite law culture miscomprehends the military [Second Circuit chief judge Dennis Jacobs speech at Federalist Society convention, YouTube]
- “Later, Bad Lawyer”: a blogger heads to prison [Greenfield]
- Reform medical liability? Depends on how badly you want neurosurgeons’ services [Michael Lavyne, NYDN]
- “Cab-rank principle” in legal ethics explained [Lawyers’ Lawyer, Australia; via Legal Ethics Forum]
- $3.5 million award to unsuccessful suicide-while-in-custody is one of long series of such cases [six years ago on Overlawyered]