Alabama Supreme Court dismisses SSM mandamus //PrawfsBlawg

 Alabama Probate judges are issuing marriage licenses to same sex couples - because they are obeying a federal court order, although the Alabama Chief Justice's directive to follow Alabama law remains in place, as  Martin Lederman  and Howard Wasserman explain. - gwc  3/6/16

Alabama Supreme Court dissmisses same-sex marriage mandate // Prawfs Blawg

The Supreme Court of Alabama today dismissed the mandamus action, and all pending motions, filed by several advocacy groups to stop probate judges from issuing marriage licenses to same-sex couples. I have not had a chance to read it yet; it includes a lengthy opinion from Chief Justice explaining why he is no longer recusing himself from the action and why Obergefell is evil.

The upshot is that there is no longer any state-court order obligating probate judges to act inconsistently with Obergefell. Some still might, of course, but they cannot rely on the state court to justify doing so.
More (no pun intended) later this weekend.

OTHERWISE: Civilian Complaint Review Board - APU and Police Discipline

OTHERWISE: Civilian Complaint Review Board - APU and Police Discipline

Does the Biden speech undermine the case for Supreme Court confirmation hearings? - John Witt - Balkinization:

 Does the Biden speech undermine the case for Supreme Court confirmation hearings? - John Witt - Balkinization:

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 HERE 

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

By Brandon Lowrey

Law360, Los Angeles (February 19, 2016, 10:30 PM ET) -- A Massachusetts state judge awarded $4.9 million Friday to a class of nearly 200,000 smokers alleging Philip Morris USA Inc. falsely advertised that Marlboro Lights cigarettes delivered less tar and nicotine to users, saying the tobacco giant's deceptive practices caused consumers to pay too much for the cigarettes.

While Superior Court Judge Edward Leibensperger's judgment places the liability on Philip Morris, it falls far short of the $600 million that the plaintiffs had asked for.

"Philip Morris knew that the implicit health reassurance message (Marlboro Lights are less harmful or safer than Marlboro Reds) conveyed by the descriptors 'Lowered Tar & Nicotine' and 'Lights' was not justified," Judge Leibensperger wrote. "The company did not conduct scientific research in the period of time through the class period to substantiate the implicit claim of 'less harmful' or 'safer' than Marlboro Reds.”

The plaintiffs contended that the "light" cigarettes were no safer than normal ones and that the tobacco company had known that from the start. Philip Morris argued that Marlboro Lights cigarettes do in fact deliver less nicotine and tar, and contain slightly less tobacco.

During closing arguments in the monthlong bench trial in November in Boston, plaintiffs' attorney Thomas V. Urmy Jr. of Shapiro Haber & Urmy LLP pointed to a 1966 internal document in which the company speculated that if it could create "a medically and governmentally endorsed 'healthy' cigarette that tasted exactly like a Marlboro, delivered the nicotine of a Marlboro and was called Marlboro, it would probably become the best-selling brand."

"That was prophetic, because that's exactly what they did," he said.

The class includes 197,000 Massachusetts consumers who bought Marlboro Lights between 1994 and 1998. The plaintiffs' proposed "benefit of the bargain" damages model hinged on whether the Marlboro Lights were safer than the average cigarette or possibly more dangerous.

The lawsuit was brought in 1998 but has gone through a hefty amount of litigation and appeals. The class survived a Massachusetts Supreme Judicial Court challenge to its certification in 2004.

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.
KEEP READING

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?

KEEP READING

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

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

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 - Salon.com