Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘on TV and radio’

San Francisco NRA resolution, cont’d

San Francisco’s resolution denouncing the National Rifle Association (earlier) might seem like so much empty wind. But there are practical reasons why such a designation poses a problem. I talk with
Caleb Brown for the Cato Daily Podcast.

Relatedly, and in no surprise, the NRA itself has sued San Francisco over the resolution, although there may be questions about whether a contractor at risk of losing city business might have a sounder claim to standing. [AP] Jacob Sullum cites “the poisonous tendency to portray one’s political opponents as mass murderers.” [Reason] And the supervisors may have a bigger group of co-thinkers out there than you might expect: 18% of voters polled “think it should be against the law to belong to pro-gun rights groups like the NRA.” [Eugene Volokh]

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Oklahoma judge orders J&J to pay state $572 million over opioid sales

“A judge in Oklahoma on Monday ruled that Johnson & Johnson had intentionally played down the dangers and oversold the benefits of opioids, and ordered it to pay the state $572 million.” The state had asked for $17 billion. [Jan Hoffman, New York Times and sidebar on why J&J, the deepest pocket, was the only defendant left standing in the Oklahoma case; opinion; Paul Demko, Politico; Lenny Bernstein, Washington Post] Caleb Brown interviewed me for the Cato Daily Podcast:

For other skeptical views of the case, see Daniel Fisher, Legal NewsLine (“J&J had about 3% market share, sold abuse-resistant drugs, and Oklahoma didn’t present evidence of a single doctor who was misled by its marketing.”) and followup (problems with state’s legal theory), Jeffrey Singer/Cato, and Jacob Sullum, Reason (sweeping definition of public nuisance) and followup (other problems). [More: Jonathan Turley]

Particularly worth noting is Jacob Sullum’s account of the logical path traced by Judge James Hill in North Dakota in recently dismissing a suit against Purdue Pharma:

One of the claims against the company involved a public nuisance statute very similar to Oklahoma’s. Hill noted that “North Dakota courts have not extended the nuisance statute to cases involving the sale of goods.” He cited a 1993 case in which the Tioga Public School District #15 of Williams County, North Dakota, argued that the sale of acoustical plaster containing asbestos qualified as a public nuisance.

The U.S. Court of Appeals for the 8th Circuit, which handled the case because it involved an out-of-state defendant, observed that “North Dakota cases applying the state’s nuisance statute all appear to arise in the classic context of a landowner or other person in control of property conducting an activity on his land in such a manner as to interfere with the property rights of a neighbor.” The 8th Circuit worried about the consequences of venturing beyond that “classic context”:

To interpret the nuisance statute in the manner espoused by Tioga would in effect totally rewrite North Dakota tort law. Under Tioga’s theory, any injury suffered in North Dakota would give rise to a cause of action under section 43-02-01 regardless of the defendant’s degree of culpability or of the availability of other traditional tort law theories of recovery. Nuisance thus would become a monster that would devour in one gulp the entire law of tort, a development we cannot imagine the North Dakota legislature intended when it enacted the nuisance statute.

Hill said he “agrees with the reasoning of the Eighth Circuit in Tioga.” As in that case, he said, the state in its lawsuit against Purdue was “clearly seeking to extend the application of the nuisance statute to a situation where one party has sold to another a product that later is alleged to constitute a nuisance.” Hill added:

The reality is that Purdue has no control over its product after it is sold to distributors, then to pharmacies, and then prescribed to consumers, i.e. after it enters the market. Purdue cannot control how doctors prescribe its products and it certainly cannot control how individual patients use and respond to its products, regardless of any warning or instruction Purdue may give.

Judging from the cases cited by Judge Balkman, Oklahoma courts have not read that state’s nuisance law to cover situations like this either—until now.

 

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Social media as public pillory for campaign donations

“When public officials or those running for office call out the political donations of people they don’t like, what’s the goal? Is it merely to shame them?” I comment in this new Cato Daily Podcast with Caleb Brown.

More on the controversy over Rep. Joaquin Castro’s (D-Tex.) tweet: Katie Rogers and Annie Karni, New York Times; Bradley Smith, National Review, Christian Britschgi, Reason; and earlier episodes, not exactly parallel but with some points of similarity, involving Sen. Marco Rubio (Maduro-cozying restaurant owner) and the then-campaigning Donald Trump (“They better be careful, they have a lot to hide!”).

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Another Maryland redistricting panel wraps up its work — and a word from Arnie

This is only tangentially related to Overlawyered (unless you are a big fan of the posts on redistricting reform and the Supreme Court’s pending Lamone v. Benisek) but one of the projects I’m involved in as a civically active Marylander, the Emergency Commission on Sixth Congressional District Gerrymandering, sent a proposed new Sixth and Eighth District map to Governor Larry Hogan last week, which he promptly introduced as a bill in the legislative term that ends soon. And yesterday, again by a unanimous vote, we approved our final report to send to the governor.

You should also listen to former California Gov. Arnold Schwarzenegger on the subject:

More coverage, mixing the Supreme Court case from last week with mentions of our remedial efforts: Samantha Hogan, Frederick News Post (with picture) and earlier, Bruce DePuyt and Robin Bravender, Maryland Matters (also with good pictures), Tamela Baker, Herald-Mail (Hagerstown), Jennifer Barrios, Washington Post, Kimberly Eiten/WJZ, Dominique Maria Bonessi, WAMU.

Also, Nina Totenberg’s approach to Schwarzenegger on the Supreme Court steps became a viral meme and I’m in it:

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Redistricting reform on the air — and a practical Maryland turn

This past weekend I joined West Coast-based libertarian radio host Bob Zadek for an hour-long show on redistricting reform. I discussed the same issue as it applies to my own state of Maryland in a podcast with the Frederick News Post’s Emma Kerr and Colin McGuire, as well as an interview with host Sheilah Kast at WYPR’s “On the Record”.

Separately from my Cato and Overlawyered work, I am honored that on Monday Gov. Larry Hogan appointed me to serve together with Judge Alex Williams as co-chairs of a new emergency commission given the task of redrawing the lines of Maryland’s Sixth Congressional District so as to comply with a federal court order. Coverage of that at WBAL, Maryland Reporter, Washington Post, Baltimore Sun and Capital Gazette, AP/ABC, Frederick News Post, Herald Mail (Hagerstown), WMAR, Maryland Matters, and many others. Maryland citizens are encouraged to apply to serve on the resulting commission; applications close December 10.

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“The Indian Child Welfare Act at 40”

“Passed in 1978, the Indian Child Welfare Act (ICWA) was intended to stop abusive practices by state and federal officials, who often removed Native American children from their families without sufficient justification. But today, ICWA is the subject of litigation in federal and state courts by challengers who argue that it imposes race-based restrictions on adoption and makes it harder for state officials to protect Native American children against abuse and neglect.”

On September 20 I moderated a Cato discussion of recent developments and upcoming challenges to ICWA, presented by Timothy Sandefur, Vice President for Litigation at the Goldwater Institute and author of Escaping the ICWA Penalty Box; Matthew McGill, attorney for plaintiffs in Brackeen v. Zinke, a major ICWA lawsuit under way in Texas; and Charles Rothfeld, who represented the birth father in the important ICWA case Adoptive Couple v. Baby Girl. Earlier on ICWA here.

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Elena Kagan on “taking big questions and making them small”

On Sept. 12 Justice Elena Kagan spoke at Hannah Senesh Community Day School in Brooklyn, interviewed by journalist Dahlia Lithwick. Steven Mazie, Supreme Court correspondent for The Economist, covered the speech on Twitter and a print account by Rob Abruzzese at the Brooklyn Daily Eagle confirms the same general points. From Mazie’s account, slightly edited for readability:

KAGAN: People viewing the judiciary as legitimate is part of the “marvel” of the third branch of government.

But that’s fragile. People can lose that faith in “unelected, pretty old” justices. If we lose that, we’re losing something incredibly important to American constitutional democracy.

This is a dangerous time for the court, because people see us as an extension of the political process. “It’s dangerous if in big cases, divisions follow ineluctably from political decisions.”

You have to try as hard as you can to find ways to avoid 5-4 decisions “by taking big questions and making them small.” Recently, we’ve had good practice in that. During 8-member court, we had to try hard to avoid 4-4s and find consensus. Sometimes it had a ridiculous air to it, “since we left the big thing that had to be decided out there.”

We kept on talking until we achieved consensus, and CJ Roberts gets huge credit for that.

I cited this passage Monday at Cato’s Constitution Day as going far to explain several cases this past term in which Kagan took an important role, including Masterpiece Cakeshop (where she and Justice Stephen Breyer joined conservatives in deciding the case on different grounds than those most strenuously contested), Lucia v. SEC (in which she wrote for the court to decide a structural question on administrative law judges narrowly while sidestepping contentious issues of separation of powers and presidential authority) and above all in the partisan gerrymandering cases (decided unanimously without addressing the principal merits, and with a Kagan-authored concurrence on behalf of the four liberals).

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