NINOMANIA
:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::
:: Friday, March 27, 2009 ::
Tomorrow (Sat.) afternoon at 3, my son Joseph (USMC) will be playing on the Christendom College rugby team, against Christopher Newport University (1 University Pl, NN). His jersey is #1. His position is “prop forward,” which, he tells me (and this is for P.G. Wodehouse fans) is “the same position Stinker Pinker played in Stiff Upper Lip, Jeeves, and which secured for him the curatorship at Totleigh-in-the-Wold.”
:: David M. Wagner 6:01 PM [+] ::
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Friend and colleague Rick Duncan raises a questions about Pleasant Grove v. Summum on his blog, and fields learned questions about it, on his blog here. (I also now link to his blog, and can't imagine why I didn't earlier.)
:: David M. Wagner 4:46 PM [+] ::
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:: Wednesday, March 25, 2009 ::
If discovery requests called for the initial response....
:: David M. Wagner 11:40 PM [+] ::
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:: Monday, March 23, 2009 ::
Barney Frank insults several Justices at once, Scalia by name
Well, a personal story, for perspective. I was once (I think it was 1994) on a CourtTV interview show with Rep. Frank (whom I had never met in person), on the issue of the proposed ENDA bill. After the show, I started to talk to him, just to be civil-like, and also to clarify that I didn't entirely agree with the views of a third panelist on the show whose views he might reasonably have attributed to me. Ignoring my proffered hand, he snarled: "Don't try to be friendly with me. This is personal. You're trying to destroy my life."
So I'm not too surprised at this latest tantrum, but at the same time, I don't think it helps either Rep. Frank or the public debate to make national events out of such incidents.
That said, it may bear noting that the insult in the above-linked item is directed at several Justices, b/c the implication is that Scalia controls them or that they routinely vote with him. I just hope Rep. Frank knows more about banking than about the past several years of voting patterns on the Supreme Court.
:: David M. Wagner 2:26 PM [+] ::
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:: Friday, March 20, 2009 ::
Interesting new blog: The Believer's Guide to Legal Issues
:: David M. Wagner 5:06 PM [+] ::
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:: Thursday, March 12, 2009 ::
Lotteries.
:: David M. Wagner 2:58 PM [+] ::
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:: Wednesday, March 11, 2009 ::
When you're in a hole, stop digging. Heard that piece of advice before? Then pass it on to someone who needs it: Doug Kmiec.
:: David M. Wagner 5:22 PM [+] ::
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:: Friday, March 06, 2009 ::
Wyeth v. Levine
Phenergan's wake -- and the national economy's
If you had to narrow down to a mere two the reasons why we moved from the Articles of Confederation to the Constitution, it would probably come down to the international weakness of thirteen separate nations or three smaller confederacies, and the economic mayhem wrought by conflicting regulations in different states. Foreign policy and interstate commerce -- the two things that would have to be determined at the federal level, even if nothing else was.
Even as Obamanomics expands federal power in ways the Founders did not intend, the Supreme Court has started diminishing it, and vindicating state power in ways many of the founder were positively afraid of. The result will not be "federalism" -- it will be the concurrent hyper-regulatory state that New Deal Justices have dreamed of since they developed what has since been called the "presumption against pre-emption" in Rice v. Santa Fe Elevator Corp. in 1947.
Perhaps the FDA honks. Perhaps there shouldn't be an FDA. Perhaps the FDCA is unconstitutional after all, as not being a regulation of interstate commerce, but rather of manufacture (I'm sure Justice Thomas would find this line of argument appealing). But short of such radical conclusions that are not even being proposed, FDA approval of labelling constituted, until this week, a safe harbor that made the interstate market hospitable to cutting-edge medicine.
Now, FDA approval, complicated and demanding as it is, will not be enough: every medicine (and probably device as well) will also have to run the gantlet of trial lawyers representing injured clients (the benefitted majority not being in court) in front of non-medically-trained juries. These, not the FDA, will now impose standards -- and not, to head off a standard canard, just for their own states. No manufacturer can afford to produce for fifty different tort standards, each of which could change with the next case. A judgment in one state has nationwide impact, but without nationwide input, just as Maryland's taxing of the Bank did in McCulloch.
What's up with Justice Thomas's concurrence? Remember, he renounced the Dormant Commerce Doctrine, back in his dissent in the Camp Newfoundland case in 1997; with it, he renounced (we now discover) the idea that the Court can or should do anything (at least under the Commerce Clause) to police the state-federal regulatory boundary. That's why for him, if compliance with both the FDA mandate and the state jury-imposed standard is physically possible -- no conflict. No conflict, no preemption.
This leaves out of account whether Congress has "occupied the field" in a manner that should, in the interest of the U.S. as an economic unity, displace state policymaking. He has some good points about the Court's use of slender evidence to establish Congress's purpose, but even if one ignores (as one should) legislative history, internal administrative deliberations, and post hoc rationalizations of agency counsel, the very existence of the FDCA (assuming it's constitutional) says something that Thomas doesn't want to hear.
Hamilton to Thomas. Hamilton to Thomas. Please pick up.
Walter Olson's take at Overlawyered.com is here, with many valuable links, especially this essay by Michael Greve.
:: David M. Wagner 5:33 PM [+] ::
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:: David M. Wagner 6:01 PM [+] ::
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:: David M. Wagner 4:46 PM [+] ::
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:: David M. Wagner 11:40 PM [+] ::
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Well, a personal story, for perspective. I was once (I think it was 1994) on a CourtTV interview show with Rep. Frank (whom I had never met in person), on the issue of the proposed ENDA bill. After the show, I started to talk to him, just to be civil-like, and also to clarify that I didn't entirely agree with the views of a third panelist on the show whose views he might reasonably have attributed to me. Ignoring my proffered hand, he snarled: "Don't try to be friendly with me. This is personal. You're trying to destroy my life."
So I'm not too surprised at this latest tantrum, but at the same time, I don't think it helps either Rep. Frank or the public debate to make national events out of such incidents.
That said, it may bear noting that the insult in the above-linked item is directed at several Justices, b/c the implication is that Scalia controls them or that they routinely vote with him. I just hope Rep. Frank knows more about banking than about the past several years of voting patterns on the Supreme Court.
:: David M. Wagner 2:26 PM [+] ::
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:: David M. Wagner 5:06 PM [+] ::
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:: David M. Wagner 2:58 PM [+] ::
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:: David M. Wagner 5:22 PM [+] ::
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Phenergan's wake -- and the national economy's
If you had to narrow down to a mere two the reasons why we moved from the Articles of Confederation to the Constitution, it would probably come down to the international weakness of thirteen separate nations or three smaller confederacies, and the economic mayhem wrought by conflicting regulations in different states. Foreign policy and interstate commerce -- the two things that would have to be determined at the federal level, even if nothing else was.
Even as Obamanomics expands federal power in ways the Founders did not intend, the Supreme Court has started diminishing it, and vindicating state power in ways many of the founder were positively afraid of. The result will not be "federalism" -- it will be the concurrent hyper-regulatory state that New Deal Justices have dreamed of since they developed what has since been called the "presumption against pre-emption" in Rice v. Santa Fe Elevator Corp. in 1947.
Perhaps the FDA honks. Perhaps there shouldn't be an FDA. Perhaps the FDCA is unconstitutional after all, as not being a regulation of interstate commerce, but rather of manufacture (I'm sure Justice Thomas would find this line of argument appealing). But short of such radical conclusions that are not even being proposed, FDA approval of labelling constituted, until this week, a safe harbor that made the interstate market hospitable to cutting-edge medicine.
Now, FDA approval, complicated and demanding as it is, will not be enough: every medicine (and probably device as well) will also have to run the gantlet of trial lawyers representing injured clients (the benefitted majority not being in court) in front of non-medically-trained juries. These, not the FDA, will now impose standards -- and not, to head off a standard canard, just for their own states. No manufacturer can afford to produce for fifty different tort standards, each of which could change with the next case. A judgment in one state has nationwide impact, but without nationwide input, just as Maryland's taxing of the Bank did in McCulloch.
What's up with Justice Thomas's concurrence? Remember, he renounced the Dormant Commerce Doctrine, back in his dissent in the Camp Newfoundland case in 1997; with it, he renounced (we now discover) the idea that the Court can or should do anything (at least under the Commerce Clause) to police the state-federal regulatory boundary. That's why for him, if compliance with both the FDA mandate and the state jury-imposed standard is physically possible -- no conflict. No conflict, no preemption.
This leaves out of account whether Congress has "occupied the field" in a manner that should, in the interest of the U.S. as an economic unity, displace state policymaking. He has some good points about the Court's use of slender evidence to establish Congress's purpose, but even if one ignores (as one should) legislative history, internal administrative deliberations, and post hoc rationalizations of agency counsel, the very existence of the FDCA (assuming it's constitutional) says something that Thomas doesn't want to hear.
Hamilton to Thomas. Hamilton to Thomas. Please pick up.
Walter Olson's take at Overlawyered.com is here, with many valuable links, especially this essay by Michael Greve.
:: David M. Wagner 5:33 PM [+] ::
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