Next Tuesday, the Supreme Court hears the oral argument in FCC v. Fox, a case concerning to what extent network broadcasters can be punished when tipsy celebrities swear on live TV.
Lyle Denniston, of SCOTUSblog, has this post on how news organizations are preparing for what could be a very blue Election Day at the court.
Friday, October 31, 2008
Wednesday, October 29, 2008
Not that Democrats and trial lawyers would ever work in unison or anything, but Rep. Henry Waxman, D-Calif., issued a report today detailing how Food and Drug Administration career staff objected to a policy change that could affect the ability of plaintiffs to file drug liability suits in state court.
Under the new rules, the FDA maintains that federal labeling laws preempt any state liability laws.
The publication of the report comes just days before the Supreme Court hears arguments in a key case on that very issue, Wyeth v. Levine.
In the report, prepared by the House Oversight and Government Reform Committee that Waxman chairs, his staff argue that regulatory changes in recent years were "made by FDA over the objections of key career officials."
According to agency documents, "high-ranking career officials repeatedly warned that the central factual justifications for the agency's new positions were false," the report states. "They also expressed concern that the changes in the labeling rules would harm patients by significantly delaying the addition of important safety information to drug labels."
It remains to be seen if Chief Justice John G. Roberts, Jr. and his colleagues - who have endorsed an expansion of federal preemption of state law in recent years - pay much attention.
Tuesday, October 14, 2008
Chief Justice John G. Roberts Jr. channeled his inner crime writer in an opinion issued this morning that hinted at a keen understanding of the drug corner.
The case, Pennsylvania v. Dunlap, was out of Philadelphia but it could just as easily have been from Baltimore, where HBO show The Wire was based.
Roberts, joined by Justice Anthony Kennedy, dissented from the denial of certiorari in a case involving a convicted drug dealer.
Nathan Dunlap got off the hook because the Pennsylvania Supreme Court decided that the arresting cop didn't have probable cause.
Put simply, Officer Sean Devlin - or should that be Officer Jimmy McNulty? (pictured) - saw an exchange on the corner and arrested the purchaser, who was found to have three bags of crack.
But the court said the transaction witnessed by Devlin was not enough to establish probable cause.
Roberts sought to show that perhaps there was by fictionalising the episode in the opening paragraphs of his opinion:
North Philly, May 4, 2001. Officer Sean Devlin, Narcotic Strike Force, was working the morning shift. Undercover surveillance. The neighborhood? Tough as a three dollar steak. Devlin knew. Five years on the beat, nine months with the strike force. He's made fifteen, twenty drug busts in the neighborhood.
Devlin spotted him: a lone man on the corner. Another approached. Quick exchange of words. Cash handed over; small objects handed back. Each man then quickly on his own way. Devlin knew the guy wasn't buying bus tokens. He radioed a description and Officer Stein picked up the buyer. Sure enough: three bags of crack in the guy's pocket. Head downtown and book him. Just another day at the office.
David Simon would be impressed.
Tuesday, October 7, 2008
This morning, the Supreme Court evaluated whether the militia violated Thomas Jefferson's Fourth Amendment rights when they searched his carriage.
Well, Justice Antonin Scalia did anyway.
During this morning's argument in Arizona v. Gant, which concerns when police officers can search the vehicle of someone they've just arrested, Scalia sought to track case history right back to the good old days of the early Republic.
"What was the situation when the Fourth Amendment was adopted?" Scalia asked an attorney for the state of Arizona. "If you stopped Thomas Jefferson's carriage to arrest Thomas Jefferson and you pulled him off to the side of the road, could you, could you then go and search his carriage?"
The lawyer, Assistant Attorney General Joseph T. Maziarz, didn't see that one coming.
"Your honor, there is not much on searches incidents prior to 1914," he said weakly.
Scalia brought the issue up again during the opposing side's argument.
"The court raises a good point," responded Thomas Jacobs, the lawyer for defendant Rodney Gant.
All of this seemed to confuse Justice Stephen Breyer, who then referred anachronistically to "Jefferson's automobile" during one of his questions.
Jefferson, who died in 1826, could not be reached for comment.
Thursday, October 2, 2008
Retired Supreme Court Justice Sandra Day O'Connor spoke today of the importance of the rule of law during the current credit crunch crisis.
At a conference she organized on the courts and corporate citizenship, O'Connor said that "corporations stand to lose large amounts and judicial independence wavers if we have methods of resolving disputes that are not fair and effective.”
She said it's vital now "to know what will help make our system recover quickly" and noted that businesses are "in a special position by virtue of their economic importance to our country -- and we're surely focused on that these days."
O'Connor conceded that more needs to be done to improve the perception among some industries that courts are not fair.
"Some see runaway juries creating unpredictability, some see litigation delay and expensive discovery processes that greatly increases the cost and time of litigation," she said.
The number of judges who "lack experience with complex business issues" is also a problem, she said.
O'Connor was joined at the conference by former Federal Reserve Chairman Alan Greenspan, who echoed her sentiments.
"Critical to economic growth is a rule of law, particularly protection of the rights of individuals and property," he said.