Wednesday, February 24, 2016

Vetting Brian Sandoval: who might (other than Ohio State fans) get super excited about his possible SCOTUS nomination? //Sentencing Law and Policy:

Could a RINO make it through the Senate Gauntlet and sit in Antonin Scalia's seat? - GWC

Sentencing Law and Policy: Vetting Brian Sandoval: who might (other than Ohio State fans) get super excited about his possible SCOTUS nomination?

by Doug Berman // Ohio State Law School

This afternoon I receive two email news alerts about a new SCOTUS nominee "front-runner": Nevada GOP Gov Brian Sandoval. I had been planning to do a post about Gov Sandoval as an interesting possible SCOTUS candidate over the weekend, but a few folks I spoke with suggested it would be almost silly to imagine Prez Obama nominating a GOP elected official. But, this Washington Postarticle, headlined "Republican governor of Nevada Brian Sandoval being considered for Supreme Court," suggests that at least a few Beltway insiders are having silly thoughts similar to mine. Here are the basics with the Post:

Brian Sandoval, the centrist Republican governor of Nevada, is being vetted by the White House for a possible nomination to the Supreme Court, according to two people familiar with the process. Sandoval is increasingly viewed by some key Democrats as perhaps the only nominee President Obama could select who would be able to break a Republican blockade in the Senate.

Senate Majority Leader Mitch McConnell (R-Ky.) on Tuesday pledged “no action” on any Supreme Court nomination before November’s election, saying the decision ought to be left to the next president. The White House declined to comment Wednesday for this story. White House press secretary Josh Earnest has emphasized in recent days that the president has not arrived at a short list of potential nominees.

The nomination of a GOP governor — albeit one with a bipartisan record — could break that resolve.

Sandoval met Monday with Senate Minority Leader Harry M. Reid, a fellow Nevadan with whom he enjoys cordial relations. A person familiar with the conversation said that while Sandoval told Reid he had not made a final decision on whether he would accept a Supreme Court nomination, he would allow the vetting process to move forward. Another person in Nevada familiar with the process confirmed that the process is underway....

It is unclear how many potential nominees are undergoing White House vetting for the high court vacancy left by Justice Antonin Scalia’s death. Obama was seen last week carrying a thick binder of materials on potential picks to review.

Obama outlined his thinking in a guest posting on SCOTUSblog Wednesday [available here]: “A sterling record. A deep respect for the judiciary’s role. An understanding of the way the world really works. That’s what I’m considering as I fulfill my constitutional duty to appoint a judge to our highest court.”

Some Democrats believe that nominating Sandoval could fracture the front of Republican opposition and force McConnell to take up the nomination in this contentious election year. It would also put on the spot a handful of Senate Republicans who are up for reelection in blue states in November.

Obama: A Responsibility I Take Seriously // SCOTUS Blog

A Responsibility I Take Seriously : SCOTUSblog
by Barack Obama

The Constitution vests in the President the power to appoint judges to the Supreme Court. It’s a duty that I take seriously, and one that I will fulfill in the weeks ahead.

It’s also one of the most important decisions that a President will make. Rulings handed down by the Supreme Court directly affect our economy, our security, our rights, and our daily lives.

Needless to say, this isn’t something I take lightly. It’s a decision to which I devote considerable time, deep reflection, careful deliberation, and serious consultation with legal experts, members of both political parties, and people across the political spectrum. And with thanks to SCOTUSblog for allowing me to guest post today, I thought I’d share some spoiler-free insights into what I think about before appointing the person who will be our next Supreme Court Justice.

First and foremost, the person I appoint will be eminently qualified. He or she will have an independent mind, rigorous intellect, impeccable credentials, and a record of excellence and integrity. I’m looking for a mastery of the law, with an ability to hone in on the key issues before the Court, and provide clear answers to complex legal questions.

Second, the person I appoint will be someone who recognizes the limits of the judiciary’s role; who understands that a judge’s job is to interpret the law, not make the law. I seek judges who approach decisions without any particular ideology or agenda, but rather a commitment to impartial justice, a respect for precedent, and a determination to faithfully apply the law to the facts at hand.

But I’m also mindful that there will be cases that reach the Supreme Court in which the law is not clear. There will be cases in which a judge’s analysis necessarily will be shaped by his or her own perspective, ethics, and judgment. That’s why the third quality I seek in a judge is a keen understanding that justice is not about abstract legal theory, nor some footnote in a dusty casebook. It’s the kind of life experience earned outside the classroom and the courtroom; experience that suggests he or she views the law not only as an intellectual exercise, but also grasps the way it affects the daily reality of people’s lives in a big, complicated democracy, and in rapidly changing times. That, I believe, is an essential element for arriving at just decisions and fair outcomes.

A sterling record. A deep respect for the judiciary’s role. An understanding of the way the world really works. That’s what I’m considering as I fulfill my constitutional duty to appoint a judge to our highest court. And as Senators prepare to fulfill their constitutional responsibility to consider the person I appoint, I hope they’ll move quickly to debate and then confirm this nominee so that the Court can continue to serve the American people at full strength.

- See more

Monday, February 22, 2016

GSK Ruling Raises Bar For Pharma On Brand Label Warnings - Law360

GSK Ruling Raises Bar For Pharma On Brand Label Warnings - Law360

 By Sindhu SundarLaw360, New York (February 19, 2016, 4:42 PM ET) 

-- An Illinois federal court's finding thatGlaxoSmithKline PLC didn't show that federal regulators would have rejected a warning that its antidepressant Paxil could make adult patients suicidal sets a high bar of proof for branded-drug makers under evidence standards outlined by the Supreme Court's landmark Wyeth ruling, attorneys say.

The Feb. 11 ruling by U.S. District Judge James Zagel denied GSK's summary judgment motions against a negligence suit by plaintiff Wendy Dolin, whose husband, Reed Smith LLPpartner Stewart Dolin, committed suicide in 2010 after taking a generic version of the drug.

Judge Zagel's ruling, which paves the way for the case to go to trial in September, rejected GSK's argument that Wendy Dolin's claims are preempted by the U.S. Food and Drug Administration's oversight of pharmaceuticals. He ruled that under the Supreme Court's landmark 2009 ruling in Wyeth v. Levine, drugmakers must show "clear evidence" that the FDA would have rejected a heightened warning sought by a plaintiff. In this case, Dolin claimed GSK should have warned on Paxil's label that the drug had posed a risk of suicidality among adult patients.

Judge Zagel's ruling raises the bar for "clear evidence" under Wyeth by essentially requiring branded-drug makers to actually show that the FDA rejected — even if only informally — a heightened warning, attorneys say.
The case is Dolin v. SmithKline Beecham Corp. et al., case number 1:12-cv-06403, in the U.S. District Court for the Northern District of Illinois

Philip Morris Hit With $4.9M Judgment In Mass. False Ad Trial - Law360

In Donovan v. Philip Morris in a shocking verdict a jury held that Marlboro cigarettes were not a defective product - despite the company's long history of upping nicotine yield.  Now on the same facts the company has been found to have misled consumers.  But after seventeen years of litigation the plaintiffs have been awarded only token damages.  We don't know what the counsel fee award will be but appeal and more litigation await. - gwc

Philip Morris Hit With $4.9M Judgment In Mass. False Ad Trial - Law360

Friday, February 19, 2016

Supreme Court vacancies in presidential election years : SCOTUSblog

 Supreme Court vacancies in presidential election years : SCOTUSblog

by Amy Howe
In the wake of the death of Justice Antonin Scalia, questions have arisen about whether there is a standard practice of not nominating and confirming Supreme Court Justices during a presidential election year. The historical record does not reveal any instances since at least 1900 of the president failing to nominate and/or the Senate failing to confirm a nominee in a presidential election year because of the impending election. In that period, there were several nominations and confirmations of Justices during presidential election years.

Wednesday, February 17, 2016

Justice Antonin Scalia's Legacy | National Catholic Reporter

The mark in The Sting asks Robert Redford "how does he do it?" "He cheats." __ "I know he cheats..HOW does he do it?" The mystery of Antonin Scalia is similar. How does he do it? How does the law always command his favored result? Michael Sean Winters explains: when the speculations about the "original public meaning" of the constitution works for him he is an originalist. When that doesn't help he denounces "legislative history" and goes to the text the way Warner Wolff went to the videotape...selectively. - gwc

Justice Antonin Scalia's Legacy | National Catholic Reporter

by Michael Sean Winters
Justice Antonin Scalia sat on the U.S. Supreme Court for almost thirty years. By standard measures, he was not the most influential justice: When litigators before the high court prepare their arguments, they usually target Justice Anthony Kennedy, not Scalia, because it is Kennedy who is likely to be the swing vote. But, Scalia became the face of a conservative legal movement that not only confronted dominant liberal legal attitudes and perspectives, but also revolutionized what it meant to be a conservative justice. In so doing, the man who thought the court should play a small role in a democracy helped accelerate the transformation of the court into a political football.

Even those of us who disagreed with Scalia found ourselves chuckling at his acerbic questioning and bon mots in dissent. His friendship with Justice Ruth Bader Ginsburg was a constant testimony to the belief, the humane belief, that there are more important things than politics. Fred Rotondaro, chair of Catholics in Alliance for the Common Good, told me yesterday, "I had the good fortune to know and be a friend of Justice Scalia for some 30 years. We agreed on virtually nothing politically but had fun lunches, almost always over Italian food and wine, talking often about Catholic thinkers like Chesterton. On the occasions we would move into political issues, he would needle me without mercy on my left wing politics." Washington has too few friendships like that anymore.

Nonetheless, there is no escaping a verdict on his influence on American jurisprudence, and that verdict is not affected by the fact that he was a good buddy to prominent liberals. He was an advocate of two judicial ideologies, neither of which is intellectually tenable and which conflict with each other. Originalism was Scalia’s core ideological commitment, the idea that the Constitution should be interpreted as it was understood at the time of its ratification. He employed Originalism to question the idea that the Constitution is a "living document," as liberal jurists held.

To be sure, there was a need for a conservative corrective after the high court starting snooping around the “penumbras” of the Constitution. As Justice Elena Kagan said in mourning Scalia’s death, “His views on interpreting texts have changed the way all of us think and talk about the law.” But, whether the Constitution is alive or not, the people whose government it intends to frame are most certainly alive and their circumstances change. Laws that cannot change with the lived circumstances of a people soon become disconnected from reality, and that disconnect will lead to the law being held in derision or ignored.

Nowhere did we see the limits of Originalism more than in his decision in Heller, which struck down both a D.C. ban on handguns and a requirement for trigger locks on all other guns. The Second Amendment, Scalia argued, gave individuals a near-absolute right to bear arms, although he allowed that felons and the mentally ill could be prevented from exercising this right. When the Second Amendment was drafted, the world was a different place. As the Brookings Institution’s Ben Wittes has written:

There are lots of good reasons why our values today might not coincide with those of the Founders on the question of guns. The weapons available today, for one thing, are a far cry from muskets, which could never have yielded the kind of street violence America sees routinely now. On a more esoteric level, the Second Amendment's protection for militias reflected the importance the Founders attached to an armed citizenry as a protection against tyrannical government. This made sense at the time. The Founders had a lot of experience with oppressive rulers and little idea whether the constitutional order they were setting up would remain free; maybe they would need to overthrow it sometime. After more than two centuries of constitutional government, however, it's safe to assume that neither an armed citizenry nor a well-regulated militia really is "necessary to the security of a free State." The opposite seems closer to the truth; just ask the Bosnians or the Iraqis. And elections, it turns out, do the job pretty well. To put the matter simply, the Founders were wrong about the importance of guns to a free society.
This is what Scalia, and his acolytes, can’t admit: That as a matter of “original” historic facticity, the Founders could only assert a right to bear a musket, not a right to bear an assault rifle, because that was all they knew at the time. Nor do we today fear that a standing army is a threat to the Republic. So, it is hard to see how the original intent of the Founders mandated Scalia’s finding in Heller. And, whither his concern to defer to the political branches?

OTHERWISE: “Ted Cruz is a liar”: Marco Rubio becomes Cruz’s latest target in South Carolina -

OTHERWISE: “Ted Cruz is a liar”: Marco Rubio becomes Cruz’s latest target in South Carolina -

Liar, liar, pants on fire used to be a schoolyard taunt - verboten in political speech. But now it is common -. After years of trash talk on talk radio the GOP has so degraded that it is how all the candidates talk. As a trial lawyer even when you had a blatant liar on the stand the word was never used. That was the conclusion you wanted the jury to draw. We never used the word. We prided ourselves on our clever circumlocutions. "Casual disregard for the truth" was one I liked. "In the war on drugs, as in every war, truth is the first casualty" was another one I used. "Lux and veritas - light and truth - that's the motto of Yale University where this witness went to school but we heard little or none of that on the witness stand today". That was much more fun and much more effective than today's broadsides. - gwc

“Ted Cruz is a liar”: Marco Rubio becomes Cruz’s latest target in South Carolina -

Monday, February 15, 2016

Scalia's textualism, originalism dominate || Slate

Friday, February 12, 2016

Healthy Marlboro Smokers In Mass. Denied Lung Screening - Law360

I really have to hand it to Diane Sullivan - lead attorney for Philip Morris.  The jury in Donovan v. Philip Morris has rendered its verdict:  Marlboros are not defective and dangerous.  In my opinion the management of Philip Morris should be serving life without parole for their design of Marlboros.  The dominant brand of American cigarettes delivers more nicotine to smokers than any other - by design.  (I know as a former Marlboros addict.) Yet the lawyers for what is in my opinion a criminal enterprise have won a huge victory. - gwc

Healthy Marlboro Smokers In Mass. Denied Lung Screening - Law360

Law360, New York (February 10, 2016, 1:38 PM ET) -- Cigarette giant Philip Morris USA need not pay for annual lung screenings for a large class of currently healthy Marlboro smokers, a Massachusetts federal jury decided Wednesday, according to a Philip Morris spokesman.

(Credit: AP)
A class of tens of thousands of healthy Massachusetts Marlboro smokers wanted Philip Morris to pay for annual scans using low-dose computed tomography, or LDCT, a relatively new technology that can pick up cancer signs much earlier than a chest X-ray. The scans cost $500 each, and the Philip Morris spokesman said Wednesday that the annual screening program would have lasted 28 years and cost the company $190 million.

The jury began deliberating Tuesday afternoon after closing arguments and reached the verdict on Wednesday.

“This was the third case of its kind to go to trial, and in each the jury ruled in favor of Philip Morris USA," Altria Client Services senior vice president and associate general counsel Murray Garnick said in a statement Wednesday. Altria Group is the corporate parent of Philip Morris.

The two other trials were in Louisiana and West Virginia “in the early 2000s,” the company spokesman said. But medical-monitoring claims are still relatively new, and many states don’t allow them.

Donovan, Cawley and their class of smokers over age 50 are led by Steven Phillips of Phillips & Paolicelli LLP, who tried to bring a similar suit in New York and were shut down by New York’s high court. In Caronia v. Philip Morris, a deeply divided New York Court of Appeals barred the potentially costly new type of civil tort claim, which can be brought without an actual injury.

California, Louisiana, Pennsylvania and Massachusetts have explicitly allowed this new type of claim; the latter’s high court ruled in 2010 that medical-monitoring claims can proceed under a tight set of guidelines.

U.S. District Judge Denise Casper will now decide if there was a consumer-protection violation, according to Altria.

An attorney for the plaintiffs was not immediately available for comment.

A major study published in 2011, the National Lung Screening Trial, or NLST, drove government recommendations that longtime smokers age 55 to 74 get annual screenings. Some groups' recommendations stretch to 79.

"You don't want to be catching tumors the size of a baseball. You want to be catching the tumor that's the size of a [grain of] rice," plaintiffs' attorney Victoria Phillips of Phillips & Paolicelli told the jury of eight men and two women during opening arguments on Jan. 27.

The plaintiffs’ first witnesses, a pulmonologist and a thoracic surgeon, told the jury that LDCT can lower smokers’ lung-cancer mortality significantly because it detects abnormal tissue much earlier than X-rays do.

Recently retired thoracic surgeon Frederic Grannis, the second witness, told the jury that whatever the issues, LDCT allowed for vastly improved survival over X-rays.

“For most of my career, we didn’t have screening, and we would see a patient only when they had their first symptoms,” Grannis said, like coughing up blood, a headache and bone pain — symptoms whose appearance usually means a patient’s cancer is too advanced to be treated, much less reversed.

Philip Morris had maintained it could not be held accountable for the cost of the screenings. Its attorney, Diane Sullivan of Weil Gotshal & Manges LLP, said in opening arguments that there was no safer alternative to the Marlboros Philip Morris made because the market rejected a low-tar product that the company promoted heavily in the 1980s.

The plaintiffs are represented by Kevin Peters of Arrowood Peters LLP; Steven Phillips, Victoria Phillips and Aryeh Taub of Phillips & Paolicelli LLP; Christopher Weld Jr. and Edward Foye of Todd & Weld LLP; and David Strouss of Thornton & Naumes LLP.

Philip Morris is represented by Kenneth Parsigian and Gwyn Williams of Latham & Watkins LLP, Diane Sullivan of Weil Gotshal & Manges LLP and Lauren Goldman of Mayer Brown LLP.

The case is Donovan et al. v. Philip Morris USA Inc., case number 1:06-cv-12234, in the U.S. District Court for the District of Massachusetts.

--Editing by Rebecca Flanagan.

OTHERWISE: Expanding Coercive Treatment Is The Wrong Solution For The Opioid Crisis

Get tough approaches to drug treatment are misconceived. - gwc

OTHERWISE: Expanding Coercive Treatment Is The Wrong Solution For The Opioid Crisis

Wednesday, February 3, 2016

Ken Stabler and the Disgrace of the NFL Concussion Settlement

"They paid with their brains for our viewing pleasure" says Ken Stabler's longtime partner.  "I looked it in the eye everyday the last fifteen years of his life."
The NFL concussion settlement excludes anyone who died after the date of approval of the class action settlement.  Since the tort system has proven inadequate there should be a legislative solution here, financed by a tax or licensing fee compelling the NFL and the NCAA  and the public schools to pay for the studies, the treatment, the compensation etc. that are attributable to playing football. - gwc
NFL great Ken Stabler had brain disease

Tuesday, February 2, 2016

China unveils first oil spill response plan | Reuters

China unveils first oil spill response plan | Reuters

China's cabinet has approved the country's first oil spill emergency response scheme to be ready by 2020, to tackle increasing risks from offshore leakages, the government said on Monday.
The new regulation - which sets oil clean-up capacity at 1,000 tonnes (7,300 barrels) within 50 nautical miles from shore - came amid a tightening of the country's environmental rules after several oil spills in recent years.
China will be capable of cleaning up 10,000 tonnes of oil discharged in those waters that are prone to high risks and less than 50 nautical miles from the coast, according to a statement on the Chinese government's main web portal.
In addition, coastal cities should be equipped to clean up and recycle 10,000 tonnes of spilled oil, the cabinet said.
By 2020, China will have 191 offshore facilities, 260 emergency boats and 52 onshore facilities as well as trained personnel that can handle emergencies, the cabinet added.
Previously, China had no nationwide oil spill response scheme, according to the cabinet, leaving companies and local governments to set up their own procedures.
ConocoPhillips and CNOOC Ltd have been embroiled in a series of legal claims following oil spills in 2011 in the Bohai Bay that polluted more than 6,200 square kilometers of water.
In 2000, a pipeline blast in the northeastern port of Dalian leaked 1,500 tonnes of heavy crude oil into the sea, and took nearly 8,000 workers and hundreds of fishing boats to clean up.

(Reporting by Meng Meng and Chen Aizhu; Editing by Dale Hudson)

Oyez - Supreme Court Archive May Shut Down // National Law Journal

OTHERWISE: Oyez - Supreme Court Archive May Shut Down // National Law Journal

The Oyez Project - a Supreme Court Archive which features oral arguments before the United States Supreme Court - is a civics resource relied on by many teachers - including me.  Political scientist Jerry Goldman was inspired by my grad school classmate, lawyer/historian Peter Irons.  The star protege of left wing historian Howard Zinn, Irons, a draft resister as a young man, secretly copied the tapes, infuriating Chief Justice William Rehnquist.  Irons' edited Supreme Court transcripts and audio were published as the popular May It Please the Court,used in many classrooms, and a popular gift for lawyer moms and dads, and law student children. 
One would hope that Google or the like would want to fund the project in the future. - gwc

Due Process for Central American Refugees? //ImmigrationProf Blog

OTHERWISE: Due Process for Central American Refugees? //ImmigrationProf Blog

Philip E. Wolgin for the Center for American Progress has a new column that considers major due process failings in the process surrounding the removal process of asylum-seekers arrested in recent the raids of Central American mothers and children and offeres a look at what adequate due process would look like

Monday, February 1, 2016

The False Lure of the Sanders Single-Payer Plan

The False Lure of the Sanders Single-Payer Plan

by Paul Starr (Princeton University)

Wouldn’t it be great if we could just go to the doctor and not pay any bills? After all, isn’t that what they do in other countries, and don’t those countries have lower health-care costs than the United States does? And aren’t private insurance companies the only reason we don’t have that kind of system?

This is the appeal of the Bernie Sanders single-payer health plan. Free health care, with none of the frustrating paperwork of today’s insurance, and with taxes that cost less than insurance premiums—what could be better than that? Of course, the single payer in the Sanders plan is the federal government, which implies concentrating payment and therefore power over health care in Washington. But, at least in this area, many Democrats don’t seem worried about that prospect.

Sanders doesn’t just call for incremental steps toward single-payer. He’s proposing to shift all of health care to federal taxes in one fell swoop. That’s one reason for the enormous, sudden increase in taxes the plan would require—$1.38 trillion on top of existing federal spending, according to Sanders’ own estimates. As Harold Pollack has pointed out, that $1.38 trillion is just about equal to total federal income and estate tax collections in 2014—in other words, the plan would require doubling that revenue. Sanders insists that he’s shown how he would pay for it through a 6.2 increase in payroll taxes (which he calls an “income-based premium paid by employers,” though the cost will fall on employees); a 2.2 percent increase in income taxes on everyone; higher estate taxes; taxing capital gains and interest as ordinary income; limiting tax deductions for the rich; and higher income-tax rates on the upper brackets (which, combined with other increased taxes he’s also calling for, would bring the top marginal federal rate to 77 percent, as Dylan Matthews shows at Vox).

But Sanders’s estimate of the needed increase in taxation, despite its whopping size, is too low. The plan would actually cost another $1.1 trillion a year, according to an analysis by Kenneth Thorpe, a health-care economist at Emory University, who has long experience working with single-payer proponents. In 2006, the Vermont legislature hired Thorpe to cost out a single-payer proposal, and in 2014 progressive legislators in Vermont hired him again. So this is not an estimate from an economist generally opposed to universal health care or to single-payer. Thorpe’s estimates indicate that workers would have to pay an additional 20 percent of compensation to pay for Sanders’s plan.

At Vox, Matthews has probed both Thorpe and the Sanders campaign on some of the specific areas where their numbers diverge. Here’s one stunning detail: When the Sanders campaign released its plan, it estimated $324 billion in annual savings on prescription drugs—until Thorpe noted that the United States spent only $305 billion for that purpose in 2014. (If Trump can expect Mexico to pay for a wall on the border, I suppose Sanders can expect drug companies to pay consumers instead of the other way around.) When Matthews pointed out that it was impossible to save $324 billion out of $305 billion, the Sanders camp cut their savings estimate to $241 billion, while conveniently increasing other projected savings to make up the difference. But $241 billion in drug savings are still implausible, and as the entire episode indicates, the Sanders campaign is simply pulling numbers out of the air.