SCOTAL Itch

[Stephen Maturin]

Originally Posted by LadyShea

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.

That's about it. One of the rules applied in these case is that if compliance with both state law and federal law is impossible, a conflict exists. The state law is thus preempted and unenforceable. The jury in that case, applying state tort law, found that the warning was inadequate. As to federal law, once the FDA approves a warning, a generic drug manufacture can't change it except to comport with changes in the warnings of the corresponding brand name drug. On that basis, the majority decided that compliance with federal law and state law was impossible, so the injured person had no remedy under state law.

Originally Posted by LadyShea

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?

Subject to limited exceptions that don't apply here, the answer is SOL.

[The Man]

SCOTUS relieves Americans from the burdens of voting: Supreme Court strikes down part of Voting Rights Act - The Maddow Blog

On the plus side, they left part of the act to Congress to "fix". On the negative side, it's Congress.

[LadyShea]

Originally Posted by Stephen Maturin

That's about it. One of the rules applied in these case is that if compliance with both state law and federal law is impossible, a conflict exists. The state law is thus preempted and unenforceable. The jury in that case, applying state tort law, found that the warning was inadequate. As to federal law, once the FDA approves a warning, a generic drug manufacture can't change it except to comport with changes in the warnings of the corresponding brand name drug. On that basis, the majority decided that compliance with federal law and state law was impossible, so the injured person had no remedy under state law.

Subject to limited exceptions that don't apply here, the answer is SOL.

This is incredibly fucked the fuck up. So how can the laws be changed to not be fucked up?

[LadyShea]

I predict Shelby County is going to go full retard with this "win", and force Congress to act somehow (probably also retarded) because...Shelby County.

[The Lone Ranger]

Wait, I'm confused.

Aren't Scalia and his ilk always getting their panties in a bunch about how we should always go for "Original Intent," and how it's a sin to interpret the Constitution as a "living and breathing document"?

After all, Congress has been pretty danged clear regarding the "Original Intent" of the Voting Rights Act. So how is this not an example of the Court's Conservative members doing exactly what they frequently criticize the more Liberal members for supposedly doing?

[The Man]

Yes except that he isn't interpreting the original intent of the 1965 Congress because lol who cares. The original intent that matters is the original intent of the Framers and that was that only white, male property holders could vote. This is just the first step towards re-establishing that glorious paradise.

Here's Wonkette's take, and Borowitz'.

[erimir]

Yeah, I think there's a language issue here.

In the phrase "original intent", "original" means "conservative" and "intent" means "interpretation." For example, in the sentence "The original intent of the feminist movement was to destroy society." I can see where the confusion would arise.


Also, just how fucked are voters/black people/Democrats by the VRA ruling?

[Watser?]

Originally Posted by The Man

Yes except that he isn't interpreting the original intent of the 1965 Congress because lol who cares. The original intent that matters is the original intent of the Framers and that was that only white, male property holders could vote. This is just the first step towards re-establishing that glorious paradise.

Here's Wonkette's take, and Borowitz'.

Apparently it still matters somehow whether people vote or not. At least to the Supreme Court.

[LadyShea]

Originally Posted by erimir

Also, just how fucked are voters/black people/Democrats by the VRA ruling?

As fucked as they already are and have been in areas not covered, but that engage in disenfranchisement shenanigans. There are still legal remedies, but only after the fact.

[ChuckF]

15 minutes.

[ChristinaM]

DOMA is first.

[ChuckF]

DOMA does not survive.

[ChuckF]

Fucking a, I am in a meeting and can't read shit. I need to pretend that I am taking notes.

[ChristinaM]

IANAL but people are dancing in the streets here in Santa Cruz. I'm jumping all over from site to site but so far I haven't seen any qualifications that make this not great.

[Stephen Maturin]

Looks like they're going to dismiss the Prop 8 case on jurisdictional grounds. Hopefully they do in a way that allows the 9th Cir. decision shooting down Prop 8 to stand.

[Janet]

Thanks to the tip about SCOTUSblog's live feed I actually beat George Takei to posting the news on Facebook. Wait, I think that belongs in the minor accomplishments thread instead.

[ChristinaM]

Originally Posted by Stephen Maturin

Looks like they're going to dismiss the Prop 8 case on jurisdictional grounds. Hopefully they do in a way that allows the 9th Cir. decision shooting down Prop 8 to stand.

Can you explain that a bit more? What are their choices of ways to dismiss it?

[Stephen Maturin]

lol Scalia is still gushing butthurt over the DOMA decision.

[ChuckF]

Dude, rational basis hasn't been in this game since 2003. Get over it.

[Stephen Maturin]

[Stephen Maturin]

Perry is in. The petitioners lacked standing to appeal the trial court order shooting down Prop 8. Presumably, that means the 9th Circuit decision affirming the trial court gets vacated, but the trial court ruling stands.

[The Lone Ranger]

I was listening to a radio program this morning that was discussing the recent rulings. Maybe somebody can help me clarify my understanding.


Regarding DOMA, the claim was that the central debate boiled down to the differing reasoning between Kennedy and Scalia. Supposedly, Kennedy's reasoning is that the State has no business legislating on the basis of "moral disapproval," and that if the State is to ban a practice, it must provide solid evidence that the practice causes actual harm -- the mere fact that [some] people disapprove of the practice is not a justification for banning it.

If that's an accurate assessment, then I have to agree. What business does the State have in telling consenting adults who they can and cannot marry? It's no one else's business whom I choose to marry.

Scalia, on the other hand, feels just the opposite, or so it was claimed. That is, in Scalia's view, "moral disapproval" is the best reason to ban a practice, and that the law is all about legislating morality.

I certainly know people who feel that way. A "friend" of mine is very keen on insisting that all laws are about morality when you get down to it, and that whether or not a practice is "moral" is the only legitimate question regarding whether or not it should be legal.

Of course, he also insists that there is such a thing as "Objective Morality," and that it is codified in one convenient package: the Bible. And naturally, what he believes is "moral" is clearly and obviously so -- and anyone who disagrees is clearly and obviously an immoral person whose opinions should be disregarded.



So, the panelists went on to say that this will lead to a scramble for states to come up with "rational" reasons why gays should not be able to marry. One such proposal was called "responsible procreation." That's not a term I'd heard before.

As the panelist explained it, the argument goes something like this: Because straight men are "animalistic" by nature, and can impregnate women and then abandon them, the State has a vested interest in promoting the "prestige" of marriage, to encourage straight men to be "responsible" when it comes to fathering children and caring for their partners and offspring.

Since gay couples can't reproduce "naturally," this isn't an issue with them, and therefore the State has no interest in promoting gay marriage.



Is that a serious argument? It sounds more like somebody's idea of a parody than a serious argument, at least to me.

[erimir]

How soon does the gayness resume in California?

[Stephen Maturin]

Originally Posted by 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.

Adoptive Couple v. Baby Girl (pdf, 62 pages).

I hadn't paid any attention at all to this case, but it turned out to be interesting as hell. First, the obligatory pop culture reference:

show spoiler

Anyhoo, a mostly Hispanic woman and a Cherokee man living in Oklahoma got engaged. Shortly thereafter the woman announced she was pregnant. The man wanted to move up the wedding, but apparently declined to provide any financial support before the child was born.

The couple split up while the woman was still pregnant. She told her ex-fiance that he had two choices: pay child support or give up his parental rights. He supposedly responded that he'd give up his rights.

The woman opted for adoption. Working through a private agency, she found a non-Indian couple in South Carolina who wanted the baby. The couple provided financial support for the mother throughout the rest of the pregnancy and were present for the birth. The biological father had nothing to do with the mother and provided no financial support after the breakup.

Adoption proceedings were commenced in South Carolina. The biological father received notice and ultimately (1) contested the adoption and (2) requested that the court award custody of the child to him.

The child, a girl, was 1.2% Cherokee. Doesn't sound like much, but it qualifies her for membership in the Cherokee nation and makes the girl an "Indian child" for purposes of the Indian Child Welfare Act. At the conclusion of a trial the family court judge nixed the adoption and awarded custody to the BF. The judge held that ICWA applied and that the adoptive parents failed to prove beyond a reasonable doubt that the child would suffer serious emotional or physical harm in the BF's custody, a showing that 25 U.S.C. § 1912(f) requires to justify terminating parental rights to an Indian child.

The BF met his child for the first time on the day the custody transfer took place. She was 27 months old.

The S.C. Supreme Court affirmed the family court, finding that awarding custody to BF was warranted under not only § 1912(f) but also two other provisions of ICWA.

The Supreme Court (5-4) held that none of the three ICWA provisions at issue applied. Section 1912(f), the provision that the family court relied on, requires a showing that "continued custody" by the parent will result in emotional or physical harm. The majority said the statute doesn't apply at all because there's no "continued custody" issue. The father never had physical custody, and under both Oklahoma and S.C. law the mother has sole legal custody of a child borne out of wedlock. Since BF never had custody to begin with, § 1912(f) can't apply.

The S.C. Supreme Court also relied on § 1912(d), which requires proof of "active efforts" to provide counseling or other services aimed at "prevent[ing] the breakup of the Indian family" prior to terminating parental rights to an Indian child. The majority was all like, "lol wtf there was never an 'Indian family' here so there was nothing to 'break up.' The statute doesn't apply."

Finally, the S.C. Supreme Court suggested that even if the family court could properly terminate the BF's parental rights, § 1915(a) of ICWA would kick in and require the court to give preference to placing the child with a member of her extended family, other members of the child's tribe, or other Indian families. The SCOTUS majority ruled that § 1915(a) didn't apply because no one with a statutory preference was asking to adopt the child.

The majority makes the case look like a straightforward no-brainer exercise in statutory interpretation. But then you get to Thomas' concurrence. Ol' Clarence tells us that BF's reading of the provisions at issue is perfectly plausible. On his view, BF's interpretation would create a serious constitutional problem because Congress lacks the authority to tell states how to handle adoption and child custody matters. He sided with the majority in this case because its interpretation of the statute, which was also plausible, avoids the constitutional issue.

Then you get to Breyer's brief concurrence, which consists of some disjointed musings about some potential undesirable consequences of the majority's decision and how they might or might not be avoided in future cases. Maybe! Seriously, wtf.

Sotomayor's dissent is masterful. She stomped the everluving shit out of each an every basis for the majority decision. Particularly enjoyable was the takedown of the majority's statement that reading ICWA broadly enough that it applies to this case would make it harder for non-Indians to adopt Indian children. The response was something along the lines of: "Yo, dumbass, that's exactly what Congress wanted." So then:

The majority’s hollow literalism distorts the statute and ignores Congress’ purpose in order to rectify a perceived wrong that, while heartbreaking at the time, was a correct application of federal law and that in any case cannot be undone. Baby Girl has now resided with her father for 18 months. However difficult it must have been for her to leave Adoptive Couple’s home when she was just over 2 years old, it will be equally devastating now if, at the age of 3½, she is again removed from her home and sent to live halfway across the country. Such a fate is not foreor*dained, of course. But it can be said with certainty that the anguish this case has caused will only be compounded by today’s decision.

[Ari]

Originally Posted by erimir

How soon does the gayness resume in California?

The governor has instructed offices to start issuing licenses as soon as the 9th circuit stay is lifted. Which could be soon, could be in a month. All counties must comply even the whiny conservative ones.