SCOTAL Itch

[chunksmediocrites]

Originally Posted by California Tanker

This is the sort of argument I don't understand. Infirmity, OK, but what is special about the underprivileged, illiterate, or whatever else it is American voter which makes it impossible for him/her to obtain documentation which is not a factor for the underprivileged, illiterate, or whatever, Irish voter? If there is no particular unique qualifier, how have we, in Ireland, been so enlightened as to be able to figure out an acceptable process, and the US has not?

LadyShea answered this well, but there are a few more points. Scale is one; there are less than 3.2 million voters in Ireland, a country slightly smaller than the state of Maine. There were 126.8 million voters in the US in the 2012 election. The US is geographically 116 times larger than Ireland.

The second point to make is that an acceptable process is in place in both nations, as far as can be determined. The rate of vote fraud is low in both nations; but neither nation has eradicated signs or concerns of vote fraud, in Ireland's case despite voter ID laws.

Originally Posted by California Tanker

One Congressional district went for a 600-vote gap out of 360,000 votes. There were numerically narrower elections at state and local level. Are they worthy of dismissal due to relatively low national importance?

When elections are very close there are often automatic recounts, or a recount can be requested by a candidate. Ballots are examined and checked for irregularities. They are worthy of dismissal because safeguards are already in place. And because available evidence suggests that in-person voter fraud is a non-issue.

[erimir]

Originally Posted by California Tanker

One Congressional district went for a 600-vote gap out of 360,000 votes. There were numerically narrower elections at state and local level. Are they worthy of dismissal due to relatively low national importance?

If there were more restrictive voter ID laws, then it's also quite possible that thousands of eligible voters would NOT have voted in those elections, and thus also change the result.

I see no reason why I should see that as a more legitimate expression of the will of the people.

But I wouldn't have much of a problem with voter ID laws if the onus was on the state to provide them for free and to ensure that everyone who wants one has one. And while we're at it, we might as well make voter registration and getting an ID synonymous for eligible voters.

[Stephen Maturin]

Mutual Pharmaceutical Co., Inc. v. Bartlett, 570 U.S. ___ (2013) (pdf, 53 pages).

The plaintiff's doctor prescribed an NSAID pain reliever for shoulder pain, and her pharmacist gave her a generic verion manufactured by Mutual Pharmaceutical. The toxic epidermal necrolysis the plaintiff developed after taking the drug resulted in 65% of her skin burning off or developing ghastly open wounds. Medically-induced coma, 12 surgeries, a year of tube-feeding, permanent disfigurement, near-blindness and other monstrous consequences followed.

The plaintiff filed a product liability action against the drug manufacturer. A jury found in her favor and awarded $21 million in damages. The court of appeals affirmed the judgment.

SCOTUS (5-4) took it all away, holding that the federal Food, Drug and Cosmetics Act, FDA regulations promulgated thereunder and the FDA's approval of the warnings that accompanied the drug at the time of sale completely preempted the plaintiff's state law product liability cause of action for design defect based on failure to provide an adequate warning.

As always, the Supreme Court wielding the clown hammer known as the Supremacy Clause is by far the most effective agent of toart refoarm in history.

--------------

Fisher v. University of Texas, 570 U.S. ___ (2013).

This case involved use of affirmative action in the state university admissions process. The Supreme Court has ruled that any use of race by a government entity is subject to strict scrutiny when challenged in court, because the drafters of the 14th Amendment clearly intended to protect whiny-assed white people and downtrodden black people with equal vigor, or some such bullshit.

Usually, a finding that strict scrutiny applies is the kiss of death for state action, since almost no law or policy can reasonably be considered "necessary" and the "least restrictive means" to further a "compelling government interest."

A honky denied admission to the University of Texas sued, claiming race discrimination. The trial court dismissed the case and the Court of Appeals affirmed the dismissal.

SCOTUS ruled today (7-1) that dismissal was improper because the lower courts didn't properly apply strict scrutiny to the university's use of race as a factor in its admissions process. The Supreme Court sent the case back for further proceedings.

Thomas agreed with vacating the Court of Appeals' judgment, but wanted to go a step further by overruling prior case law and holding that race may NEVAH, EVAH play a part in state university admissions.

---------------

United States v. Kebodeaux, 570 U.S. ___ (2013) (pdf, 38 pages).

A federal statute mandates that people convicted of federal sex offenses register as sex offenders in any state where they live, work or attend school. The Court upheld the registration requirement against an as-applied challenge brought by a former member of the Air Force who was convicted of a sex offense by a court martial but had completed his sentence before the registration requirement took effect.

For those those who can't get enough court opinions regarding the interplay of the Military Regulation Clause and Necessary and Proper Clause -- and I know there are many, many thousands of you here at -- Kebodeaux is a must-read.

[Ari]

FDA approved drugs now kill more people than illegal drugs. NSAIDs are pretty high on that list, and are often prescribed for minor discomfort but people might think twice if they knew the temporary solution to their aches and pains might make their skin fall off.

[Dingfod]

Don't try to scare me, my skin is still intact and I've been taking about 3200 mg IBU per day for much of the last 14 years because of my stupid busted-ass ankle.

[Stephen Maturin]

One from last week:

American Express Co. v. Italian Colors Restaurant (pdf, 28 pages)

A group of merchants got together and filed a class action lawsuit against American Express for violations of federal antitrust law based on allegations that AE used its monopoly power in the credit card marketplace to extort grossly excessive fees.

Trouble is, the standard agreement between AE and merchants provides that all disputes will be resolved through arbitration, and that no class-action arbitration is allowed. The trial court dismissed the lawsuit based on the arbitration clause, but the Ninth Circuit reversed based on the prohibitive costs of arbitrating each claim separately. The Supreme Court proceedings went something like this:

Merchants: Yay! We get to pursue our class action lawsuit!

SCOTUS: Fuck you. Arbitrate.

Merchants: Okay, but do we at least get to arbitrate on a class action basis?

SCOTUS: Fuck you. Arbitrate each claim separately, like you agreed.

Merchants: Surely you can't be serious. Proving a Sherman Act violation will cost hundreds of thousands of dollars, whereas the maximum per-claim recovery is about $38,000.

SCOTUS: Yes, we're serious. The Federal Arbitration Act says you're stuck with the agreement you signed. And stop calling us Shirley.

Merchants: But what about that one case in which you suggested that an arbitration agreement might be void as against public policy where it precludes effective vindication of statutory rights?

SCOTUS: lol trolled.

The ruling was 5-3, with Sotomayor not participating.

[beyelzu]

alito is a douche. even more so than previously suspected.

At this point, Alito pursed his lips, rolled his eyes to the ceiling, and shook his head "no." He looked for all the world like Sean Penn as Jeff Spicoli in Fast Times at Ridgemont High, signaling to the homies his contempt for Ray Walston as the bothersome history teacher, Mr. Hand.

Justice Alito's Inexcusable Rudeness - Garrett Epps - The Atlantic

[beyelzu]

Originally Posted by Stephen Maturin

Mutual Pharmaceutical Co., Inc. v. Bartlett, 570 U.S. ___ (2013) (pdf, 53 pages).

The plaintiff's doctor prescribed an NSAID pain reliever for shoulder pain, and her pharmacist gave her a generic verion manufactured by Mutual Pharmaceutical. The toxic epidermal necrolysis the plaintiff developed after taking the drug resulted in 65% of her skin burning off or developing ghastly open wounds. Medically-induced coma, 12 surgeries, a year of tube-feeding, permanent disfigurement, near-blindness and other monstrous consequences followed.

The plaintiff filed a product liability action against the drug manufacturer. A jury found in her favor and awarded $21 million in damages. The court of appeals affirmed the judgment.

SCOTUS (5-4) took it all away, holding that the federal Food, Drug and Cosmetics Act, FDA regulations promulgated thereunder and the FDA's approval of the warnings that accompanied the drug at the time of sale completely preempted the plaintiff's state law product liability cause of action for design defect based on failure to provide an adequate warning.

As always, the Supreme Court wielding the clown hammer known as the Supremacy Clause is by far the most effective agent of toart refoarm in history.

So if a drug is approved by the fda is there then no legal remedy whatsoever against the manufacturer?

[Stephen Maturin]

Preemption law in the drug and medical device contexts is a clusterfuck of biblical proportions, such that cases like this often get bogged down in factual minutia regarding the specifics of the drug's or device's history in the FDA and the specifics of the applicable state tort law. You can't really talk in generalities like "FDA approval automatically precludes a remedy."

If preemption applies, though, the injured person is generally boned in terms of getting compensation from the manufacturer. A sanction, if any, must generally come from the FDA, which .

What we really need is an amendment to the Food, Drug and Cosmetics Act stating that nothing in federal law forecloses or limits state law personal injury/wrongful death claims against manufacturers of drugs or medical devices. Congress clearly lacks the balls to do that, so we needn't even consider whether Obama has the balls to sign such a bill.

[ChuckF]

Opinions today at 10 a.m. EST (in about 40 minutes) and probably tomorrow, too. If you're not tuning in to SCOTUSblog's liveblog, you probably suck.

[Stephen Maturin]

SCOTUSblog's live blog feed is up and running. Opinion time is about 40 minutes away.

There's six cases left and there'll be one more opinion release day after today. That means we might get rulings on VRA, DOMA and/or Prop 8 today, or we might not.

Ninja'd by Counselor F!

[ChuckF]

[beyelzu]

Maturin, it took you over 3 minutes to type that?


You charging by the hour?

[Stephen Maturin]

Fucking coons Jews.

[ChuckF]

OPINION TIME

[LadyShea]

I am confused about this drug case. It seems to have not been decided on whether the drug label warnings were adequate, but on whether the generic manufacturer has the power to change/add to the warnings or change the formulation of a name brand and something about state laws vs. federal laws contradicting each other.

Am I reading that correctly? Was one of the label warnings "your skin may burn off"? What state law and federal law are so out of sync as to cause this?

If injured people can't seek remedy from the manufacturer, who exactly can they seek remedy from? The patent holder (which is the name brand manufacturer I assume)? Nobody? Just SOL?

[ChuckF]

Shelby County is in; Section 4(b) of the Voting Rights Act, requiring federal preclearance of changes to election law in covered jurisdictions setting out the coverage formula, is unconstitutional.

[Stephen Maturin]

First case is Koontz, the Takings Clause case out of Florida. The property owner won.

Second is Baby Girl, the Indian Child Welfare Act case. Adoptive parents win, biological father loses.

[Stephen Maturin]

Shelby County v. Holder

Thomas is butthurt that the Court didn't shoot down Section 5 as well.

[Stephen Maturin]

And that's it for today.

[ChuckF]

So that leaves for tomorrow Hollingsworth, Windsor, and...Sekhar. Did I leave anybody out?

[chunksmediocrites]

How narrow was the ruling in the Indian Child Welfare Act case? I heard that this case could potentially invalidate much of indian sovereignty generally.

Also, it is a rough situation for the adoptive parents, but according to the biological father, he got railroaded into signing his parental rights away, a few days before his military deployment.

[ChuckF]

I would very much like to hear Counselor Maturin make up some stuff about federal Indian law, because as far as I know that is pretty much how federal Indian law works.

ETA: all remaining opinions released tomorrow at 10 a.m. Based on tea-leaves of opinions authored so far, it looks like Roberts, Kennedy, and Scalia are up to bat.

[LadyShea]

Parental rights stuff is complicated and weird in any situation. Our adoption laws are antiquated and stupid just in general, heavily favoring the adoptive family in most situations, and need to be overhauled pretty completely.

I am an adoptive parent, and srsly have had to block and deflect privilege that was thrown at me...not just check it.

Anyway yeah, add Federal Indian law to it, and I don't even.

[Stephen Maturin]

Originally Posted by ChuckF

I would very much like to hear Counselor Maturin make up some stuff about federal Indian law, because as far as I know that is pretty much how federal Indian law works.

It's true. My made-up stuff has had the full force and effect of federal Indian law for over three decades.