Monday, October 6, 2008
- The government sided with the plaintiffs on the implied preemption quesiton, but only on that question.
- But the judges weren't buying it - asking why the FTC hasn't regulated these misleading ads since they know about them for some time. Justice Scalia said: “When did the Commission know this stuff? I had a case when I sat on the Court of Appeals, so it had to be before 1984…It’s been general knowledge for a long time, and the FTC has done nothing abput it.”
- The defendants oral argument focused on the express preemption issue only. Denniston quotes the following exchange between the defendant's lawyer, Theodore Olson, and Justice Scalia --- Olson: “I’d like to spend no time on the implied preemption argument." Justice Scalia: “Good idea.”