Thanks to recusal of the Chief Justice, the Supreme Court today deadlocked on whether federal law pre-empts a state law that allows products liability claims despite approval of an injury-causing drug by the Food and Drug Administration.  The Michigan statute at issue protects a pharmaceuticals manufacturer whose product receives the FDA’s blessing unless the plaintiff shows the drug-maker committed fraud in the review process.  Warner-Lambert Co. v. Kent, No. 06-1498 (U.S. Mar. 3, 2008) (per curiam), aff’g Desiano v. Warner-Lambert Co., No. 05-1705 (2d Cir. Oct. 5, 2006). 

WSJ story here.

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David Letterman recently played a video illustrating the custom of donning native garb when American politicians travel beyond our national borders.

The clip includes Barack Obama in traditional Kenyan dress, Hillary Clinton sporting a head scarf in Jordan, Bill Clinton in Senegalese clothing, and George W. Bush during a trip to Turkey.

Blawgletter liked it. We hope you do too.

Grab a sandwich this coming Thursday for lunch at your computer.

At noon Central on March 6, the ABA Center for Continuing Legal Education will present "Pumping Up Your Online Presence with a Blog". The teleconference-and-webcast will last 90 minutes and carries 1.5 hours of continuing legal education credit.

Here goes the Program Description:

With over 75 million weblogs, or blogs, now online and an estimated 120,000 new weblogs being created each day, blogs have become a major part of online culture. There are many law-related blogs and some lawyers report increased client development from their blog postings. Others have been interviewed by national media outlets due to their blogs. Though blogs are relatively inexpensive and easy to produce, there is more to being a successful blogger than first meets the eye.

This program will address the growing “blogosphere” and how attorneys can use it to further their practices. Our experienced panel includes Jim Calloway and Tom Mighell, both of whom are listed in the “Top 100 Blawgs” by the ABA Journal. From a brief history of the blog to an examination of newer technologies such as RSS feeds, this program will give you the tools you need to build and maintain your own blog. If you are new to blogs, or just looking for the latest updates, this is the program for you.

Topics to be covered include:

Understanding of blogs
How to use blog features such as RSS feeds and feed readers
Examination of representative blogs
Tips on publishing a blog
How to harvest specialized legal information available in blogs

This program has separate audio teleconference and online PowerPoint presentation components. Registrants will have to dial into the audio teleconference and, in order to view the presentation slides, log into the website.

[Hat tip: The UCL Practitioner]

Feedicon Blogging tip:  Use block quotes.

The Fair Credit Reporting Act requires a credit reporting agency to use "reasonable procedures" to assure accuracy of its reports.  A district court held that a plaintiff may not show unreasonableness of an agency’s procedures without an expert opinion on the issue.  The D.C. Circuit disagreed and reversed the summary judgment for the agency.  Wilson v. CARCO Group, Inc., No. 07-7073 (D.C. Cir. Feb. 29, 2008).

Feedicon14x14_2 Who would fardels bear?

The moms and dads of two high school softball players sued the school district, the board, and administrators for denying them their civil rights to, among other things, receive an invitation to take tickets at games, videotape contests from behind the backstop, and to receive the correct starting time for a team banquet that they didn’t want to attend.  The district court dismissed their claims under section 1983, and the Seventh Circuit affirmed.  It also ordered the parents to show cause why the court shouldn’t impose sanctions on them for prosecuting a frivolous appeal.  Springer v. Durflinger, No. 06-2168 (7th Cir. Feb. 29, 2008).

Blawgletter did not make this up.

Feedicon14x14 Happy Friday — and Leap Year Day.

Shakespeare’s Dick the Butcher, in Henry VI, proposed to kill all the lawyers as a first step toward revolution. 

President George W. Bush today insisted that Congress immunize telecommunications companies for invading Americans’ privacy via illegal wiretaps.  Or else he’ll veto legislation for legal wiretapping going forward.

The rationale for the retroactivity angle?  That the litigation process could reveal information about the wiretapping process, allowing terrorists to adapt.  That the government already told the companies they had immunity.  And, finally, that the companies face "billions of dollars of lawsuits" and that class action lawyers "see a financial gravy train".

Blawgletter takes the first reason at face value.  We, too, want terrorists not to know how to evade surveillance.  At the same time, we’d like a respectful explanation of why lesser measures can’t achieve the same goal.  And why disclosing past methods — to the extent the government hasn’t already revealed them — would tell terrorists much about current and future methods.

On the second point — that the feds assured the companies about the legality of he wiretaps — we’d like to see some evidence.  The federal judge overseeing the multi-district litigation didn’t buy it.  And, if the government did in fact grant effective immunity already, why on earth do we need a statute saying the same thing?

The last reason — that pesky class action lawyers aim to profit from enforcing laws against warrantless wiretapping — shifts the focus from what the government did to the lawyers doing their job.  Why the president threw it in eludes us.  Sure, some people might oppose damages to class members and fees to lawyers even if they prove that the government engaged in wrongdoing, but we don’t see what that has to do with future wiretapping.  Congress can pass a law on future wiretapping without letting AT&T off the hook for past illegal wiretapping.

Nor do we know why the government doesn’t just indemnify the telecommucations companies directly if it feels so passionately about protecting them.

We just don’t think that the arguments for tying immunity for past conduct to approval for future wiretapping methods hold up. 

Which leaves the question:  Does the administration’s intransigence reflect a genuine desire to head off frivolous litigation — or a hope that it can avoid judicial scrutiny of an apparently slap-dash, way too broad, ineffective, expensive, hurtful, and embarrassing abuse of power? 

If Congress goes along, we may never know the true answer.

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Y’all will recall back in December 1987 when the CBS show "60 Minutes" went hammer and tong after the Supreme Court of Texas.  Something about justice for sale.  Justices deciding cases in direct proportion to the campaign contributions of the winners.  Bad stuff.

Blawgletter wonders whether history has started to repeat itself.  A local television station in Dallas, WFAA, last night broadcast a segment on how long Their Honors take to render their opinions.  A few months earlier, the Dallas daily newspaper, The Dallas Morning News, published an investigative article on how often the Court’s rulings favor big business.  Plus three justices have drawn attention for using campaign funds — possibly illegally — to pay for tons of travel.  And Texas Watch fairly sprays saliva in its earnest enthusiasm to tell one and all how slow, anti-plaintiff, pro-defendant, and downright arrogant the justices have become in the post-Ann Richards era of Republican political domination.

We’ve pondered whether the Court hates class actions.  Also why it now issues so many per curiam opinions and summary rulings without hearing oral argument.  Any thoughts, y’all?

Feedicon14x14 Y’all means "you all".  It’s never singular.

Williamfbuckley_jr
Who could dislike the exuberant Bill Buckley?

Truth is a demure lady, much too ladylike to knock you on your head and drag you to the cave.  She is there, but people must want her, and seek her out.

One of Blawgletter’s favorite people in the world, William F. Buckley, Jr., died yesterday at 82. 

See obits and remembrances, starting with his National Review, here, here, here, here, here, and here.

Feedicon_2 Besides Norman Mailer.

The Supreme Court held today that a district court erred in dismissing an age discrimination complaint.  The lower court ruled that one of the plaintiffs, Paula Kennedy, waited too long to file a "charge" of discrimination against her employer, FedEx.  The 7-2 Court affirmed the Seventh Circuit’s reversal, agreeing that Ms. Kennedy’s timely submission of an "Intake Questionnaire" with a six-page affidavit describing the discriminatory conduct qualified as a "charge".  The ruling turned largely on the Court’s deference to the Equal Employment Opportunity Commission’s regulatory definition of what constitutes a "charge".  Federal Express Corp. v. Holowecki, No. 06-1322 (U.S. Feb. 27, 2008).

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