Saturday, December 20, 2008
A belated welcome to Constitutional Law Prof Blog, a recent member of the Law Prof Blogs Network. The blog is edited by Professors Steven Schwinn (John Marshall), Ruthann Robinson (CUNY), and Nareissa Smith (Florida Coastal). Here's a recent preemption post about Altria Group, Inc. v. Good.
Thursday, December 18, 2008
Professor Lars Noah (Florida; picture left) has posted on SSRN his article, Platitudes About 'Product Stewardship' in Torts: Continuing Drug Research and Education, Mich. Telecomm. & Tech. L. Rev. (forthcoming 2009). (H/t Torts Prof & Solum/Legal Theory.) Here's the abstract:
This paper focuses on one emerging aspect of tort litigation against pharmaceutical manufacturers that, if it gained traction, portends a dramatic (and potentially counterproductive) expansion in the prescription drug industry's exposure to liability. A growing chorus of commentators would impose on pharmaceutical manufacturers a broader duty to test and educate (aspects of what they call an obligation of "product stewardship" or "informed choice"). This paper explains the serious flaws in such proposals, but it also suggests one novel basis for imposing liability (distribution restrictions) that might make some sense. Genuine product stewardship, at least if understood as an effort to make the most of a scarce resource, strikes me as far more defensible than the approaches suggested by other commentators.
Tuesday, December 16, 2008
Yesterday, the Supreme Court ruled in Altria Group v. Good that the federal cigarette labeling statute does not preempt claims that tobacco companies violated state consumer protection laws in their marketing of light cigarettes. Here's the Supreme Court's opinion.
Today, the New York Times ran an editorial lauding the decision, calling it a "major and well-deserved setback" for the tobacco industry, and suggesting that the ruling may indicate a shift away from the Court's pro-defendant rulings on civil litigation issues:
It was a welcome departure for a court that has been far too deferential to business. We hope it signals that the justices are moving toward a more balanced approach to business cases.
The editorial noted that until this case, the Supreme Court's recent rulings "have made it harder for ordinary Americans to hold corporate wrongdoers accountable." The interesting thing was how the editorial then linked the decision to "troubled economic times," the "election returns," and the "national mood":
In these troubled economic times, as the nation is still trying to come to terms with the enormous damage done by the deregulation of the mortgage industry, the national mood is turning strongly toward greater regulation. It has often been observed that the Supreme Court has a tendency to follow the election returns, and it may have done so here. With this decision, the court might be indicating a greater appreciation that when companies do wrong, there needs to be a legal means of holding them accountable.
It remains to be seen what the Supreme Court will do in Wyeth v. Levine and other cases on preemption, punitive damages, and other key issues facing mass tort defendants and plaintiffs. As far as the White House is concerned, although Barack Obama clearly is not a tort reformer in the mold of George Bush, he has avoided being closely identified with trial lawyer interests and made a point during the campaign of emphasizing that he voted for CAFA in the Senate. But it is undeniable that the "national mood" has shifted, and it will be interesting to see whether this latest tobacco ruling heralds a Supreme Court shift in the same direction. And even more interesting to see what happens to such rulings if President Obama gets to name a new Justice or two.
Monday, December 15, 2008
Adam Liptak of the New York Times breaks down the issues in Justices Look Anew at Case in Which Oregon Court Has Twice Rebuffed Them. Here's an excerpt:
The United States Supreme Court takes its name seriously, and it expects lower courts to follow its instructions. But the Oregon Supreme Court has twice refused to reduce a $79.5 million punitive damages award in the face of increasingly blunt directions from the nation's highest court.
When the United States Supreme Court agreed to hear the Oregon case for a third time in June, many legal experts assumed it did so to teach the lower court a lesson about which court has the last word.
''The Oregon Supreme Court really has continued to be defiant in this case,'' Benjamin C. Zipursky, a Fordham law professor, said.
Professor Tom Baker (University of Pennsylvania) has posted on NELLCO his manuscript, Liability Insurance at the Tort-Crime Boundary. Here's the abstract:
This essay explores how liability insurance mediates the boundary between torts and crime. Liability insurance sometimes separates these two legal fields, for example through the application of standard insurance contract provisions that exclude insurance coverage for some crimes that are also torts. Perhaps less obviously, liability insurance also can draw parts of the tort and criminal fields together. For example, professional liability insurance civilizes the criminal law experience for some crimes that are also torts by providing defendants with an insurance-paid criminal defense that provides more than ordinary means to contest the state’s accusations. The crime-tort separation in liability insurance cannot be explained by economic incentives, alone. Morality matters, too. The fact that liability insurance sometimes provides coverage for criminal defense costs suggests that liability insurance institutions could cover a broader swath of crime torts than they do, providing further support for the claim that consequentialist reasoning, alone, cannot explain the observed relationship between liability insurance, torts, and crime. The tort-crime separation reflects and reinforces a concept of liability insurance as protection for defendants, rather than as a fund for victims. In turn, this concept of insurance reflects and reinforces an understanding of tort claims as encounters between particular plaintiffs and defendants, rather than as a price setting or loss spreading insurance mechanism.
The Supreme Court granted cert today on whether a federal bankruptcy court can block private suits seeking damages for injury and death caused by asbestos. The consolidated cases are Travelers Indemnity v. Bailey, et al. (08-295) and Common Law Settlement Counsel v. Bailey, et al. (08-307). SCOTUSblog has links to the Second Circuit's opinion and the petitions for certiorari. The question presented is:
Whether the court of appeals erred in categorically holding that bankruptcy courts do not have jurisdiction to enter confirmation orders that extend beyond the "res" of a debtor's estate, despite this Court's recent ruling that "[t]he Framers would have understood that laws 'on the subject of Bankruptcies' included laws providing, in certain respects, for more than simple adjudications of rights in the res," Central Virginia Community College v. Katz, 546 U.S. 356, 370 (2006), and whether the court of appeals compounded this error by: (a) failing to apply as written a federal statute (11 USC §§ 524(g) and (h)), by limiting the scope of relief in a manner that is contrary to the express terms and purposes of that statute; (b) failing to give effect to the Supremacy Clause and holdings of this Court that federal bankruptcy relief cannot be overridden by rights alleged to have been created under state law; and (c) failing to respect important principles of finality and repose, and the express provisions of § 524(g), by failing to approve a federal court's enforcement of a confirmation order that was affirmed over two decades ago on direct appeal.
Professor Samuel Issacharoff (NYU) has posted on NELLCO his manuscript, Private Claims, Aggregate Rights, which is forthcoming in the Supreme Court Review. Here's the abstract:
In an odd set of procedure opinions last Term, the Supreme Court found itself confronted with the inadequacy of the federal rules for dealing with the sprawling array of aggregate disputes that currently engage the courts. Taken on their own terms, the three cases - Sprint Communications Co., L.P. v APCC Services, Inc, Republic of the Philippines v Pimentel, and Taylor v Sturgell - broke little new ground. Even the topics presented - real parties in interest, required parties, and non-party preclusion - are hardly the stuff of future debates over potential Supreme Court nominees.
Nonetheless, each of these cases presented privately held legal claims that could not be litigated to resolution absent aggregation with the claims of other parties. In each case, the formal workings of the procedural system were inadequate to the task. This Article contrasts the formalism of federal court procedural doctrines to the flexibility of bankruptcy workouts for asbestos claims and court-supervised private settlements, as in the recent Vioxx settlement. In the latter examples, courts have used more flexible principles of equity to oversee privately-ordered mass settlements. The article explores both the benefits and the limits of such private ordering in order to highlight the limitations on court-administration of mass harm litigation.
E!online reports that Mark Lanier, of Vioxx litigation fame, hired Miley Cyrus to play his firm's holiday party, which included 7,000 guests. No word on whether Cyrus's father, country singer Billy Ray Cyrus, lead the Vioxx plaintiffs in a chorus of "My Achy Breaky Heart."
Wow. The Supreme Court today allowed smokers to sue tobacco companies under state consumer protection statutes for deceptive promotion of "light" and "low tar" cigarettes. In Altria Group v. Good, the Court rejected the defendants' argument that federal law on cigarette labeling preempts such suits. Plaintiffs had sued under the Maine Unfair Trade Practices Act. The District of Maine granted summary judgment for Altria, and the First Circuit reversed. At the Supreme Court, Justice Stevens wrote today's majority opinion for the usual 5-4 split with Kennedy as the swing vote (Stevens, Ginsburg, Breyer, Souter, and Kennedy vs. Thomas, Roberts, Scalia, Alito).
Here's an excerpt from the AP story on the New York Times website:
The Supreme Court on Monday handed a surprising defeat to tobacco companies counting on it to put an end to lawsuits alleging deceptive marketing of ''light'' cigarettes. In a 5-4 split won by the court's liberals, it ruled that smokers may use state consumer protection laws to sue cigarette makers for the way they promote ''light'' and ''low tar'' brands. The decision was at odds with recent anti-consumer rulings that limited state regulation of business in favor of federal power. The tobacco companies argued that the lawsuits are barred by the federal cigarette labeling law, which forbids states from regulating any aspect of cigarette advertising that involves smoking and health.
Just when we thought federal preemption was going to change the course of mass tort litigation, it seems that one of the key pieces of tobacco litigation is alive and well.