March 6, 2008
A Must Read
If you haven't read this order yet from the Eastern District of Pennsylvania, do it now.--Counseller
Over at Drug and Device Law, Beck and Herrmann have an interesting post about the Supreme Court's recent (non)decision in Warner-Lambert v. Kent. It begins:
As the whole drug and device world knows by now, Warner-Lambert v. Kent played to a 4 to 4 tie on Monday.
The Supreme Court decision thus "lacks a precedential effect,"Plaut v. Spendthrift Farm, 514 U.S. 211, 215 n.1 (1995), and the case law remains where it was two weeks ago.
Thus, if Michigan residents sue drug companies in a federal court in the Sixth Circuit (which covers Michigan, Ohio, Kentucky, and Tennessee), the plaintiffs automatically lose -- their claims are statutorily barred. See Garcia v. Wyeth-Ayerst Labs. 385 F.3d 961 (6th Cir. 2004).
But if those same plaintiffs sue those same drug companies in a federal court in the Second Circuit (which covers New York, Connecticut, and Vermont), the plaintiffs do not automatically lose. Under the Second Circuit's decision in Desiano v. Warner-Lambert (now affirmed by the 4 to 4 tie in the Supreme Court under the name Warner-Lambert v. Kent), the Michigan immunity statute is subject to a fraud-on-the-FDA exception. The plaintiffs have some chance that their cases will go forward. ...
March 5, 2008
Prof. John Sonsteng recently published A Legal Education Renaissance. You can download the paper and join a conversation about the project and its recommendations here. The abstract follows.--Counseller
A Legal Education Renaissance suggests a model for change and provides answers to criticism of the current system by addressing curriculum, teaching, faculty, and costs. It offers a realistic, achievable solution that fits within the guidelines that govern legal education institutions. The perspectives and recommendations are presented with the intent of encouraging discussion about the future of modern legal education.
The proposed legal education model dramatically changes the structure and content of the curriculum, uses modern learning and teaching techniques, changes the makeup of the faculty and reduces costs while addressing the diverse needs of today’s students.
March 4, 2008
Welcome Mats and Kaleidoscopes
If anyone is interested in my recent article, It's Just Not Worth Searching for Welcome Mats with a Kaleidoscope and a Broken Compass, you can download it below. Please do e-mail me any comments or suggestions. The abstract follows:
Justice Holmes construed the words “arising under” to mean something simple and ascertainable – a case arises under the law that creates the cause of action. By rejecting the bright-line Holmes test as the exclusive test, the Supreme Court created a second branch of federal-question jurisdiction, which applies to state-created claims with embedded federal issues, and which is governed by a flexible and elusive standard. While eschewing the bright-line Holmes rule as too rigid, champions of the second branch have both praised its flexibility and predicted that clear-enough boundaries will develop. They have not and will not. Long ago, Justice Cardozo acknowledged that the second branch requires an “accommodation of judgment to … kaleidoscopic situations.” Then armed with kaleidoscopes, the Court and Academy tried to locate the boundaries. Professor Cohen then informed us, in his landmark article, that the “arising under” compass was still broken. The Court tried to fix the compass in the Merrell-Dow case, but that just created a 3-way circuit split. Finally, in the recent Grable case, the Court explained that Merrell-Dow caused confusion because we should have had our kaleidoscopes and compasses set on finding welcome mats. 85 years of trying is enough.
I make three assertions in the article: (1) The second branch should be eliminated (2) by Congress (3) by defining “arising under” solely for purposes of 28 U.S.C. § 1331. Simple may not always, or even often, be better. But in this context it is. Viewed in light of the state, federal, and systemic interests, the costs of retaining the second branch outweigh the benefits. A limited sample group of opinion-generating second-branch removal cases indicates that for every removed case that satisfies Grable about eight more are remanded after an average delay of about six months—cases remanded without opinion almost surely skew the numbers more. The class of delay-prone cases will remain large because most colorably removable cases are removed, and the nature of the second-branch casts a wide net of colorability. As for the change coming by amendment, Justice Thomas recently invited original-intent arguments to justify returning to the Holmes test, and I agree with him in part. We should look for the Holmes test, but to today’s Congress, not the Congress of 1875. The article concludes by considering issues surrounding the amendment of a major general grant of jurisdiction and ultimately recommending that Congress should define “arising under” solely for purposes of § 1331. This approach will allow Congress to retain the second branch in areas of exclusive jurisdiction, will eliminate Grable’s new disruptiveness prong, and will ultimately facilitate a transition where once again cases construing the jurisdictional statute will resemble statutory-construction cases.