Tag Archives: Supreme Court

The Depth Of The Supreme Court’s Factual Misunderstandings

  It’s October, which means the Supreme Court is back in session, ready to continue its pro-big-business charge. It also means it’s time for me to get back to a recurring theme on my blog: if past sessions are any indication, then no matter what the Supreme Court decides this year, it’s likely that it won’t have a clue what it’s talking about, and its opinions will be littered with dubious factual conclusions.   This problem seems to be getting worse in the era of the Roberts Court, which has taken judicial activism to a new level. Back in 2009, ... Continue Reading

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The Undeniable Fact Of A Pro-Big-Business Supreme Court

  Three years ago, Professor Richard Epstein of the University of Chicago was peddling falsehoods and misconceptions about malpractice law that wouldn’t pass a 1L Torts class. Via Walter Olson, I see he’s back with a piece titled, “The Myth of a Pro-Business SCOTUS,” claiming “Commentators inaccurately condemn the five conservative justices as corporate shills.” He specifically mentions articles by Erwin Chemerinsky, Adam Liptak, Arthur Miller (whose article I discussed previously) and the recent analysis by Lee Epstein, William Landes, and Richard Posner.   Epstein raises three complaints about attacks on the Roberts Court: “selection bias; misplaced significance; and failure ... Continue Reading

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The Worst Supreme Court Cases Of 2013 For Consumers, Employees, And Patients

Back in January 2012, I posted a short item titled, Supreme Court Sets The Tone For 2012 Term: Might Makes Right, in which I recounted how the Supreme Court had begun the 2011-2012 term with two opinions that were great if you own a prison management company or fake credit repair company, but not so great if you were injured by a private prison’s malfeasance or defrauded by a consumer credit company.   The rest of that term went as expected, with opinions knocking our various discrimination plaintiffs (Hosanna-Tabor Church v. EEOC), mesothelioma victims (Kurns v. Railroad Friction Products) and ... Continue Reading

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ERISA: The Enemy Of Working Families

In 1974, spurned by the collapse of the Studebaker Corporation and the corresponding loss of pension benefits, Congress enacted the Earned Retirement Income Security Act (“ERISA”) nominally “to protect interstate commerce and the interests of participants in employee benefit plans and their beneficiaries” by ensuring the financial stability of employee benefit plans. 29 U.S.C. § 1001(b). Congress’ intentions were good — we’d all like to see pensions protected — but ERISA hasn’t accomplished much in practice.  Just ask the 5,000 people who used to work at Enron, all of whom watched their $2.1 billion in retirement savings go up in ... Continue Reading

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Cleaning Up The Supreme Court’s Newest Class Action Mess, Comcast v. Behrend

As Judge Posner remarked, “only a lunatic or a fanatic sues for $30,” Carnegie v. Household Int’l, Inc., 376 F.3d 656 (7th Cir. 2004), and that’s because it costs money to seek civil justice. For all the complaints by corporate defendants about the “rising costs of litigation,” those costs are just as frequently — perhaps more frequently — borne by plaintiffs. I’ve had individual wrongful death cases that required hundreds of thousands of dollars in litigation expenses alone, not including attorney and paralegal time.   Here in Philadelphia, the tallest building by far is the Comcast Center, built in part ... Continue Reading

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Allegedly Abused Prisoner Wins Unanimous Supreme Court Tort Case (Was It All Justice Alito’s Doing?)

Yesterday, the Supreme Court unanimously held in Millbrook v. United States that 28 U.S.C. § 2680(h) — the statute that permits lawsuits against “investigative or law enforcement officers of the United States Government” for claims arising “out of assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution” — means just what it says, reversing nearly thirty years of law in the Third Circuit. So why did the Supreme Court have to tell us that a statute meant what it obviously meant?   The case arose from a prisoner in the United States Penitentiary in Lewisburg, Pennsylvania, who ... Continue Reading

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Impossibility Preemption, Strict Liability, And The Troll Supreme Court Justice

This week’s U.S. Supreme Court argument in Bartlett v. Mutual Pharmaceutical (link goes to my thoughts on the case, which I posted back in December) has taken the issue of “impossibility preemption” for a brief stroll through the rest of the legal world, crossing paths with some major news outlets. Karen Bartlett was given a shot of a pain reliever, sulindac, which caused her to develop Stevens-Johnson Syndrome and toxic epidermal necrolysis so severe her burn surgeon called it “hell on earth.” There would be a handful of legal avenues available to her if she had received the brand-name drug, ... Continue Reading

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Scalia On Reading Law: The Fox On Guarding Henhouses

[September 20, 2012: This post has been updated at the end to include comments on Judge Posner's review, Brian Garner's response, and the volleys between Scalia and Posner.] It sounds like such a good idea: the pre-eminent legal lexicographer of our time and a Supreme Court Justice together writing a large, detailed treatise on, as they say, “what, in our view, courts ought to do with operative language” of regulations, statutes, and court opinions. The result of this collaboration between Brian Garner and Justice Scalia, Reading Law: The Interpretation of Legal Texts, billed as “systematically explain[ing] all the most important ... Continue Reading

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Checking The Supreme Court

There are innumerable ways to set up government, but the Framers of the United States Constitution agreed that our country should be governed by a series of checks and balances: the legislature drafts the laws, the executive enforces the laws, and then both are ignored while five Justices of the United States Supreme Court draft and execute the real laws by deciding in their sole discretion which laws count, which don't, and what additional laws they would like, based on whatever "facts" some court clerk found googling around to support a Justice's preference. What, you didn't learn it that way in high school ... Continue Reading

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One-Sided Arbitration: How To Tell If A Company Expects To Hurt Or Cheat You

Every day, billions of dollars changes hands based on the myth that people actually read, and agree to, every word in every contract they've ever signed. Ever read your cell phone contract? Your cable contract? Judge Posner famously admitted that he didn't read the contract that came with his home equity loan. Truth is, who has the time or energy to scrutinize every line? And what power do you have to negotiate it? Try negotiating your cell phone contract some time. See if you can even find a person at the company with the authority to negotiate. Decades ago, thoughtful ... Continue Reading

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