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.

(”Wyeth v. Levine Could Endanger Your Health”, Forbes, Nov. 11). Much more on the debate at Point of Law here, here, here, etc.

• Could AIG really have been THAT stupid in risk analysis? [Carney, more, Salmon] #
• Unexpected: NY Gov. Paterson appears before Congress and quotes Ayn Rand [Damon Root, Reason "Hit and Run"] #
• “I don’t know what Prop 3 is, but I’m voting against it because there were kids in that ad.” [@daveweigel quoting another] #
• Operatic: Terry Teachout and Leontyne Price among the Supreme Court justices [About Last Night] #
• Already a good blog out there on your topic? Don’t let that stop you [O'Keefe] #
• Obama Warns He May Cease To Exist Unless America Believes In Him [The Onion] #
• “The majesty of our jury system: remember, she made it past 2 sides’ voir dire” [@tedfrank on Anchorage Daily News coverage of Stevens trial juror] #

David Bernstein @ Volokh — not one to be suspected of sugar-coating his treatment of the subject — listens to the Democrat’s 2001 Chicago public radio interview, and finds reasons to be cautiously optimistic about Obama’s view of the role of courts:

…Obama was clearly influenced by [the] Rosenberg/Klarman thesis that the Supreme Court rarely diverges much from social consensus, and can’t be expected to.

On the issue of whether Obama endorses redistribution of wealth through the courts, it certainly sounds to me like he thinks the Rodriguez case (holding 5-4 that unequal funding of public schools does not violate the Equal Protection Clause) was wrongly decided, and that state courts that have mandated equal funding for public schools are correct. But he also seems to think that it was a huge error for activists to try to achieve more general redistribution through the Due Process Clause of the Fourteenth Amendment. (In the waning days of the Warren Court, there was a movement to try to constitutionalize a right to a minimum income.) Co-interviewee Dennis Hutchison even suggests that in pre-interview conversation, Obama agreed with him that Goldberg v. Kelley, establishing procedural protections for welfare recipients, was wrongly decided, or at least promised much more than it could possibly achieve.

Based on this interview, it seems unlikely that Obama opposes constitutionalizing the redistributive agenda because he’s an originalist, or otherwise endorses the Constitution as a “charter of negative liberties,” though he explicitly recognizes that this is how the Constitution has been interpreted since the Founding. Rather, he seems to think that focusing on litigation distracts liberal activists from necessary political organizing, and that any radical victories they might manage to win from the courts would be unstable because those decisions wouldn’t have public backing. The way to change judicial decisions, according to Obama, is to change the underlying political and social dynamics; changes in the law primarily follow changes in society, not vice versa. Again, he’s channeling Rosenberg and Klarman. And this attitude on Obama’s part shouldn’t be surprising, given that he decided to go into politics rather than become a full-time University of Chicago constitutional law professor, as he was offered. Had he been committed to the idea that courts are at the forefront of social change, he would have been inclined to take a potentially very influential position at Chicago. (And judging from this interview, he would likely have been a great con law professor, both as a teacher and scholar, and, had he been so inclined, legal activist.)

P.S. Was “cautiously optimistic” the right phrase to describe David Bernstein’s reaction? Read his whole post as updated, as well as Ted’s contributions in comments.

Rutgers visiting lawprof Marc Edelman hopes the Supreme court will agree to clarify to what extent fans and other third parties are free to use players’ and teams’ names and statistics. (AmLaw Daily, Oct. 8; earlier here, etc.)

• Appeals court upholds Ted Roberts “sextortion” conviction [Bashman with lots of links, San Antonio Express-News]
• Alito incredulous at FTC: you guys have failed to raise a peep about bogus tar & nicotine numbers for how long? [PoL]
• Please, Mr. Pandit, do the country a favor and don’t litigate Citigroup’s rights to the utmost in the Wachovia-Wells Fargo affair [Jenkins, WSJ]
• Docblogger Westby Fisher, hit with expensive subpoena over contents of his comments section, wonders whether it’s worth it to go on blogging [Dr. Wes, earlier]
• “Title IX and Athletics: A Primer”, critical study for Independent Women’s Forum [Kasic/Schuld, PDF; my two cents]
• Case of whale-bothering Navy sonar, often covered in this space, argued before high court [FoxNews.com]
• More on Kentucky’s efforts to seize Internet domain names of online gambling providers [WaPo, earlier]
• Exposure to pigeon droppings at Iraq ammo warehouse doesn’t seem to have affected worker’s health, but it was disgusting and she’s filed a False Claims Act lawsuit against private contractor for big bucks [St. Petersburg Times, Patricia Howard, USA Environmental; but see comment taking issue]

• Yikes! Pressure builds to downgrade U.S. govt’s “AAA” rating [Reuters] #
• John Carney leaves DealBreaker for better offer [Salmon] #
• Man smoked pot on sly, now sues over rejection by pain management program [Overlawyered] #
• Lots of StumbleUpon traffic on blog all of a sudden. Does this relate to having joined Twitter? #
• Freakonomics on credit crisis, thanks @petewarden [Levitt, NY Times] #
• Other countries aren’t citing our Supreme Court as much? Good! [Paulsen, Balkinization] #

• Clarence Thomas’s book, detailing Biden’s “smooth, insincere promises” (read: lies to his face) in the confirmation hearings is now more than ever a must-read.
• Carter Wood has a good record of Biden’s votes in recent years.
• And somebody should be making a YouTube compilation of these quotes, since we can’t count on the Daily Show to do it.
• And Mickey Kaus reminds us of an earlier gaffe.

Gary Charbonneau had a gambling history, including substantial wins, which devolved into compulsive gambling in 2002. He blames this on his Parkinson’s disease medication, Mirapex, which he started taking in 1997. Mirapex changed its warning label to include reports of a correlation while Charbonneau was taking the drug; Charbonneau’s doctor kept prescribing the drug. Nevertheless, Charbonneau was able to persuade a jury that the failure to warn was what was responsible for his $200,000 gambling losses (much of which came from gambling illegally) and resulting marital troubles. The jury verdict even awarded $8 million in punitive damages, giving a whole new meaning to jackpot justice (though one would expect the trial court to reduce this substantially). The only press coverage of this lawsuit, aside from a handful of blogs (Pharmalot; TortsProf; InjuryBoard), is in an op-ed I wrote for today’s Examiner about the case and about how a Supreme Court case and Congressional legislation could affect it. (Theodore H. Frank, “Jackpot justice gets new meaning,” DC Examiner, Aug. 19).

Today’s Wall Street Journal has a short version of my take on the Exxon Shipping v. Baker decision. Cf. also my Federalist Society podcast.

I’ve done a podcast for the Federalist Society on the Supreme Court punitive damages decision in Exxon Shipping v. Baker.

• New FASB regulation may provide fodder for trial lawyers: publicly disclose your internal analysis of liability (thus giving away crucial settlement information and attracting more lawsuits), and/or face lawsuits when your disclosure turns out to be incorrect. [CFO.com; CFO.com; NLJ/law.com ($); FASB RFC]
• NBC settles a “You-made-me-commit-suicide-by-exposing-my-pedophilia” lawsuit. [LA Times; WSJ Law Blog; Conradt v. NBC Universal]
• A victim of overwarning? 17-year-old loses hat on Six Flags Batman roller-coaster ride, ignores multiple warning signs to jump multiple fences into unauthorized area, retrieves hat, loses head. [FoxNews/AP; Atlanta Journal-Constitution; TortsProf]
• Lots of Ninth Circuit reversals this term, as per usual. [The Recorder/law.com]
• A no-Twinkie defense doesn’t fly in a maid-beating case. [CNN/AP via ATL]
• The Chinese government demonstrates that it can enforce laws against IP piracy when it wants to [Marginal Revolution]
• “Justice Scalia said he thought that the United States was ‘over-lawed,’ leading to too many lawyers in the country. ‘I don’t think our legal system should be that complex. I think that any system that requires that many of the country’s best minds, and they are the best minds, is too complex. If you look at the figures, where does the top of the class in college go to? It goes into law. They don’t go into teaching. Now I love the law, there is nothing I would rather do but it doesn’t produce anything.’” [Telegraph]
• Above the Law commenters decidedly unimpressed by my looks. Looking forward to feminists rushing to my defense against “silencing insults.” [Above the Law]

Case Western’s Jon Adler, Boston University Law’s Jack Beermann, Northwestern Law’s Steve Calabresi, Cooper & Kirk’s Chuck Cooper, BakerBotts’ Allyson Ho, Erik S. Jaffe, P.C.’s Erik Jaffe, Georgetown Law’s Marty Lederman, NYU Law’s Rick Pildes, and the Ethics & Public Policy Center’s Ed Whelan are discussing the Supreme Court Term on the Federalist Society website.

Anchorage is beautiful this time of year, but, alas, my interview discussing the Exxon Shipping v. Baker case was over the phone. Not sure when they’ll run the clip, but probably tonight, since the decision has a good chance of being issued tomorrow.

Update: Here’s the story.

On March 1 we reported,

Oregon Supreme Court plays chicken with SCOTUS over $79.5 million punitive damages award in Williams v. Philip Morris case. [Sebok @ Findlaw; Krauss @ IBD; POL Feb. 1]

Continue Reading »

I’m proud to be part of the amicus brief in Wyeth v. Levine filed by leading economists John E. Calfee, Ernst R. Berndt, Robert Hahn, Tomas Philipson, Paul H. Rubin, and W. Kip Viscusi.    It provides an excellent explanation why FDA preemption is good for consumer safety and health policy, and why failure-to-warn litigation by trial lawyers hurts consumer safety.  (You may notice that none of the public-policy arguments against preemption you see in the blogosphere fairly address these economic arguments.)

For everything you could possibly want to know about the Wyeth v. Levine case, do see Beck & Herrmann’s roundup of their excellent posts on the subject, and keep an eye out for their discussion of the top-side briefs undoubtedly coming soon.

Ed Morrissey of the Captain’s Quarters Blog interviews me about the Stoneridge case and argument, and about Sarbanes-Oxley. Morrissey comments further about the case.

I’m scheduled to be on Bloomberg TV at 5 pm Eastern talking about the Stoneridge case. See also Point of Law October 6 for more links.

In the August 27 Legal Times:

To the editor:

I appreciated the chance to speak with reporter Tony Mauro about Stoneridge v. Scientific-Atlanta, an upcoming Supreme Court case that will be discussed at an AEI panel on Oct. 5. Unfortunately, a sentence in his Aug. 20 article [“High Court Head Count at Issue,” Page 1] incorrectly implied that I thought the decision by the U.S. Court of Appeals for the 8th Circuit in the case was an “anti-investor ruling,” when that characterization is solely Mauro’s.

On the contrary, as I have written in The Wall Street Journal and told Mauro, I believe that the 8th Circuit’s dismissal of the case redounds to the benefit of investors in general and that the best result for investors (if not for trial lawyers) would be affirmance by the Supreme Court. And I say that even though I am a putative class member in Stoneridge.

Theodore H. Frank
Resident Fellow
American Enterprise Institute for Public Policy Research
Washington, D.C.