[Update, May 23, 2018: As I predicted almost a year ago, before the lawsuit was even filed, Trump’s twitter feed is indeed a public forum. A federal district court just denied his motion to dismiss. I haven’t read it in full yet, but I’ll update this post when I’ve had a chance.]

[Update, June 6, 2017: A week after I wrote the below, the Knight Institute wrote a letter to President Trump arguing the same. Eugene Volokh says there’s a “private capacity” argument. I addressed that below, the same way the Davison court ruled on it. Moreover, just today Press Secretary Sean Spicer admitted the tweets are “official statements by the President of the United States.” Also, Charles Ornstein has a good summary of other elected officials blocking constituents, and litigation over it.]

While in the White House, Donald Trump’s personal twitter timeline, @realDonaldTrump, remains a key method by which he communicates with the public. He uses it to conduct foreign policy, to urge specific action by Congress, to promote certain media articles, and, of course, to persuade the public on key issues, including with implied references to classified government information. And, critically for our purposes here, he allows the public, the media, and other elected representatives to post tens of thousands of comments in response to each tweet:

trumptweetcomments
As Danny Sullivan pointed out, President Trump has recently become more aggressive in blocking people on Twitter, and so Sullivan has created a list of blocked users. Sullivan wonders if this creates a First Amendment issue, noting,

When Trump blocks, he doesn’t just impact himself. He blocks some Americans from speaking in arguably the most important forum, his tweets.

For our purposes here, I’ll refer to @realDonaldTrump’s tweets as “tweets,” and the responses to them as “replies,” so we don’t get confused. When @realDonaldTrump “blocks” someone on Twitter, they can no longer read his tweets or reply to them. That is in contrast to “muting,” which removes the person’s replies from @realDonaldTrump’s view but leaves them up for other users.

So, are President Trump’s tweets a public forum? If so, does that place limits on when President Trump can block users from replying?

I believe the answers are “yes” and “yes.” Because President Trump uses @realDonaldTrump for official business, and because President Trump allows (arguably, invites) replies on his tweets, he has made his Twitter timeline into a limited public forum. As such, the First Amendment applies. He can potentially impose content restrictions, but he can’t impose viewpoint restrictions.

Here’s why. Continue Reading Free Speech And Trump Tweets: When Twitter Is A Limited Public Forum

Earlier this month the Supreme Court decided Goodyear Tire & Rubber Co. v. Haeger et al., a case I wrote about way back in 2012 involving the scope of sanctions (including attorney’s fees) available when a party to a lawsuit brazenly lies about important evidence throughout most of the case.
 
 
 
The case involves a tire defect lawsuit and the extraordinary lengths to which the defendant, Goodyear, went to hide evidence of its culpability.
 
 
 
These are the underlying facts: the Haeger’s motorhome swerved and flipped over when one of the Goodyear G159 tires blew out. Goodyear’s G159 tire was originally designed for regional delivery trucks. In the 1990s, Goodyear started marketing it for Recreational Vehicles, even though the tire wasn’t meant to withstand the weight and heat of an RV traveling at interstate speeds, particularly in the hotter parts of the country. Goodyear’s own testing data showed that the G159 became unusually hot at speeds above 55 miles per hour – but in the Haeger case, Goodyear failed to produce this data. Instead, they repeatedly lied to the plaintiffs, claiming they had produced “all testing data” when, of course, they hadn’t. Continue Reading Goodyear v. Haeger: The Supreme Court Muddles Sanctions Law Again

Judge Gorsuch’s confirmation hearing for his nomination to the United States Supreme Court begins today. He has been called “an originalist and a textualist,” someone with a “strong commitment to textualism.” He is repeatedly compared to the late Justice Scalia, a comparison that seems to have merit.
 
 
 
I am no fan of “originalism” or “textualism.” In practice, being an “originalist” or a “textualist” is a lot like being “gluten-free” except when it comes to pasta and bagels. There’s no consistent logic to these approaches and, just as bad, there’s no consistent application of them. I have yet to see a single judge or legal scholar in the United States who rigorously applies “textualism” to every case they see. Instead, most “textualists” are happy to apply these concepts rigorously when it will produce the result they want — but they’ll gladly relax them or ignore them if it produces a politically-inconvenient outcome. Continue Reading Is Judge Gorsuch Really Committed To Legal Textualism?

 
 
 
Federal court litigators are of course familiar with Fed.R.Civ.P. 26(a)(2)(B), which requires “a written report” from the witnesses we typically think of as “expert witnesses,” i.e., the witnesses “retained or specially employed to provide expert testimony in the case or one whose duties as the party’s employee regularly involve giving expert testimony.” But what about other types of expert witnesses?
 
 
 
“Non-retained” expert witnesses are more common in federal court than many people realize: think of the doctors who treated an injured plaintiff, the government employees who investigated an accident, the engineers who worked on a defective product, or the competing inventors of a design in a patent infringement case. What do parties have to disclose before trial about those witnesses? Continue Reading Treating Physicians & Non-Retained Expert Witnesses: What Do Parties Have To Disclose Before Trial?

More than 2.6 million people tuned in to hear the Ninth Circuit’s oral argument in State of Washington, et al., vs. Donald Trump, President of the United States, et al, one of the cases challenging the Muslim refugee ban. It was a remarkable display of public interest in the workings of the federal judiciary. Those curious citizens were then treated to a lengthy argument over standing, one of the more obscure and frustrating doctrines in the law.
 
 
 
“Standing” refers to a particular plaintiff’s ability to bring a particular claim. If your third cousin gets hit by a drunk driver, your third cousin has “standing” to sue the drunk driver. You, however, do not have “standing” to bring that lawsuit. It sounds like such a straightforward issue, but, thanks to years of dubious Supreme Court precedent, “standing” is now a doctrinal morass that sporadically results in the dismissal of important cases, leaving a wide swath of potentially illegal or unconstitutional actions unreviewable by any court. Continue Reading Rethinking Article III Standing Requirements

LBJ gave up his radio stations. Jimmy Carter gave up his peanut farm. Untangling Donald Trump from his web of companies and interests is a bit more complicated.

 

Yesterday, a team of lawyers at Morgan Lewis released a “white paper” about “conflicts of interest and the President,” apparently prepared for President-Elect Donald Trump. (“Apparently” because it’s not clear if Morgan Lewis prepared it for Donald Trump, The Trump Organization, the newly created trust, or some combination of all three.) The white paper argues that the President and Vice President are exempted from the federal criminal conflict of interest statute, 18 U.S.C. § 208, and that the Foreign Emoluments Clause of the Constitution isn’t violated by Trump (or his company) doing business with foreign governments “so long as foreign governments pay fair-market-value prices.”

 

What was more interesting, however, was what Morgan Lewis did not say: how is Donald Trump going to ensure he and his sons don’t commit “honest services fraud?” Continue Reading Donald Trump And Honest Services Fraud

Last month, the FDA allowed Pfizer to change the warning label for Chantix — a drug prescribed for smoking cessation — so that it no longer has to have a prominent “black box” warning for psychiatric effects. Instead, it has a warning lower in the label that says:

Neuropsychiatric Adverse Events: Postmarketing reports of serious or clinically significant neuropsychiatric adverse events have included changes in mood (including depression and mania), psychosis, hallucinations, paranoia, delusions, homicidal ideation, aggression, hostility, agitation, anxiety, and panic, as well as suicidal ideation, suicide attempt, and completed suicide. Observe patients attempting to quit smoking with CHANTIX for the occurrence of such symptoms and instruct them to discontinue CHANTIX and contact a healthcare provider if they experience such adverse events. (5.1)

Kaleigh Rogers at Vice hails the change: “Though this is a win for Pfizer, it’s also a win for science: years of independent scientific research has shown there’s no link between the drug and an increased risk of negative psychiatric effects.” That sort of loose analysis — “no link,” instead of the more accurate “no statistically significant difference among users with no prior history of psychiatric conditions” — is what gets us into trouble. The problems only get worse once we look at the clinical trial that supposedly justified this change, a trial so plagued with problems that the FDA disregarded many of the investigators’ conclusions and initiated an investigation into protocol violations.
 

Put simply, we don’t have adequate scientific data to conclusively prove or disprove a link between Chantix and neuropsychiatric adverse events, but the evidence we do have is quite worrying.
 
Continue Reading Chantix And The End Of Evidence-Based Pharmaceuticals

Have you seen this horrifying graphic?

nyt-horrifying-graphic

It’s from a New York Times story, “How Stable Are Democracies? ‘Warning Signs Are Flashing Red.’” The graphic suggests that people were asked whether it was “essential” to live in a democracy and, in response, more than half of people born after the 1960s said it was not. Worse, the graphic suggests nearly 70% of people born after 1980 said it was not “essential” to live in a democracy.

If that were true, it would be quite alarming.

Here’s the good news: it’s not true. No one was even asked if it was “essential to live in a democracy.”

Here’s even more good news: that same study actually showed,

  • 98.9% of Americans under 30 believe it is “important” to live in a democracy.
  • Americans under 30 are three times less likely than Americans over 50 to say that free elections are not “essential.”
  • Americans under 30 are half as likely than Americans over 50 to say that civil rights protecting people from state oppression are not “essential.”
  • Americans under 30 are far less likely to say it is “essential” that people “obey their rulers.”

There are lies, damned lies, and statistics. Let’s see how this all went wrong.

Continue Reading Younger People Are Actually More Supportive Of Democracy

As I wrote two weeks ago, a petition for certiorari is pending in Bristol-Myers Squibb Co. v. Superior Court, a case that might change the rules for specific jurisdiction. A week ago, amicus briefs were filed by several large corporations and their lobbying groups, including a brief by GlaxoSmithKline that included these curious quotes and citations:

GSK-Miller

When’s the last time you saw a multi-billion-dollar corporation tell the Supreme Court of the United States to get the real facts about personal injury lawsuits from The Trial Lawyer Magazine and a six-year-old post on accidentinjurylawyerblog.com?

 

I’d certainly trust Ron Miller before GlaxoSmithKline. Sure, there’s reason to question the credibility of both: GlaxoSmithKline paid $3 billion to settle fraud claims brought by the Department of Justice, whereas Ron Miller didn’t follow me on Twitter until recently. Despite that obvious lapse in Ron’s judgment, he’s a trustworthy guy.

 

The citation to Ron’s blog is not the only time I’ve seen a legal blog cited in a brief. I recently saw a federal appellate court brief filed by a drug manufacturer include a citation to Drug & Device Law, a blog written entirely lawyers who represent drug manufacturers. I don’t have a problem with that, either. The citation to Drug & Device Law was in many ways a de facto extension of the page limits, because the post in question advocated for the same position the defendants were taking, but the same could be said for many of the nominally “unbiased” law review articles that are routinely cited in briefs and by courts.

 

But there are deeper issues we need to consider here. Are parties encouraging courts to decide cases based on facts outside of the record? Should courts decide cases based on advocacy pieces from non-parties? Are we really entering an era in which a lawyer can credibly support an argument by referencing something they read on the Internet? Continue Reading When Lawyers’ Blogs Are Cited In Federal Courts

Pfizer likes California. As the company brags on its website, “Pfizer La Jolla’s 25-acre campus includes five buildings totaling more than 500,000 square feet of state-of-the-art facilities, with specialized laboratories and equipment for structural and computational biology, molecular design, drug metabolism, high throughput chemistry, and pharmacology.” Pfizer reaps billions in profits from its California sales (profits Pfizer is going to avoid paying taxes on by asserting they were earned overseas), and Pfizer shovels that money right back into California politics, spending over $6 million this year trying to influence a California ballot measure that would cap prescription drug costs.


But that didn’t stop Pfizer from claiming in a court filing earlier this week that lawsuits against it cannot “be fairly heard by a California state court.” Pfizer claims that allowing lawsuits against it to be heard in California would deny Pfizer “its due process right not to be hailed into a foreign court that lacks both general and specific jurisdiction.” It’s as if California was some sort of totalitarian regime on the other side of the world, rather than the home to Pfizer’s 25-acre campus less than a mile from the Torrey Pines Golf Course.

If this sounds nuts, that’s because it is nuts. But this is the wacky world of personal jurisdiction that big corporate defendants want to create by way of the Supreme Court’s decision in Daimler AG v. Bauman, 571 U.S. 20 (2014). The proper application of Daimler AG has been one of the most contentious issues in the federal courts over the past two years, and it’ll remain contentious for years to come.

So grab a cup of coffee and let’s get to work.

Continue Reading Personal Jurisdiction Under Daimler AG and Walden