Tag Archives: Supreme Court

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 ... 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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Sandra Fluke Can Sue Rush Limbaugh For Defamation And IIED

Update: I spoke with Geraldo Rivera on 77 WABC about the issue (MP3 file here, segment starts at 13:00), and with LXBN TV, with the below video: The Philadelphia Daily News has an article today quoting me on the Sandra Fluke / Rush Limbaugh defamation scandal: Max Kennerly, a lawyer with The Beasley Firm in Center City, thinks Fluke "definitely" has a defamation case against Limbaugh if she chooses to pursue it. Limbaugh could argue that he was simply rendering an opinion protected by the First Amendment or, alternatively, that the statements would be seen as so outlandish that nobody would ... Continue Reading

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Originalism and Corporate Personhood Meet The Alien Tort Statute

Today the Supreme Court will hear oral arguments in two cases, Kiobel v. Royal Dutch Petroleum and Mohamad v. Palestinian Authority, that raise a simple question: whether the Alien Tort Statute applies to corporations. The Constitution granted Congress the power "To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations," Article 1, Section 8, Clause 10, and Congress responded in the Judiciary Act of 1789 by passing the Alien Tort Statute (ATS), which ensured "district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation ... Continue Reading

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Blame The Supreme Court, Too, For SOPA and PIPA

Yesterday, many of the largest and most influential websites on the Internet exercised their power in our attention economy by either going entirely dark (like Wikipedia and reddit) or by prominently displaying calls to action that recommended users contact their representatives and senators about the Stop Online Piracy Act ("SOPA") in the House and the Protect IP Act ("PIPA") in the Senate.  The effort apparently worked, with support for both bills collapsing, particularly in the Senate, where even seven of the former co-sponsors of the bill renounced their support. Of course, there's a good chance some of the more dubious ... Continue Reading

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Supreme Court Sets The Tone For 2012 Term: Might Makes Right

[Update, February 9, 2012: Erwin Chemerinsky has an article at the ABA Journal explaining how Minneci and another case this term, Ryburn v. Huff, have made it far harder for civil rights plaintiffs to prevail.] Yesterday, the Supreme Court issued its first two opinions this term* in civil cases, Minneci v. Pollard, a lawsuit brought by a prisoner who was denied medical care at a federal prison run by a private company, and CompuCredit v. Greenwood, a proposed class action on behalf consumers deceived into signing up for a credit card that claimed it would help "rebuild poor credit" but actually instantly filled ... Continue Reading

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The Most Unfair Prescription Drug And Medical Device Opinions Of 2011

A few days ago I reviewed the list of "worst" pharmaceutical and medical device liability court opinions of the last year as chosen by the defense lawyers at Drug & Device Law, so I feel obligated to follow-up on their post on the "best" prescription drug and medical device decisions. The short version is quite simple: drug and device companies really like activist judges legislating from the bench or overruling juries' factual findings. How else to explain the love for PLIVA, Inc. v. Mensing, in which the United States Supreme Court couldn't find a federal statute or regulation in support of ... Continue Reading

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Perdue v. Kenny A. Keeps On Punishing Class Action Lawyers

I complained back when the Supreme Court's Perdue v. Kenny A. opinion first came out more than a year ago, knocking down attorney's fees awarded to a set of extraordinary children's rights lawyers: It’s no stretch to say those lawyers single-handedly reformed the foster care system in metropolitan Atlanta. And they did that by spending their own money and putting in their own time, with no guarantee they would recoup any of their out-of-pocket costs, much less get paid a fee for their services. Had they been paid by the hour as they went along, their services would have been ... Continue Reading

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