Everyone knows that uncertainty induces settlement.
The parties know it: File a dispositive motion; then, open settlement talks.
The judges know it: Have a stack of unresolved motions in limine, or a summary judgment motion, sitting on your desk; then, invite the parties in to discuss settlement.
Given that truth, should we be seeing an increase in pharmaceutical product liability settlements over the next two weeks?
Uncertainty is surely in the air. It’s drifting about along with the autumn leaves.
How will the Supreme Court rule in Wyeth v. Levine?
If the decision favors industry, then who will be the next president, and how will he feel about preemption? (We have, of course, already spoken on that score.)
Will the Democrats gain a filibuster-proof majority in the Senate?
(The argument raised in Levine is constitutional in nature, grounded in the Supremacy Clause of the Constitution. Clever legislators could, however, surely draft mere statutes that would effectively undo any protection that a favorable decision provided to drug companies. A filibuster-proof Senate would allow the dominant party, if it were so inclined, to introduce and pass that type of bill.)
As we said, uncertainty’s in the air.
Perhaps the anvil is hot for more settlements to be struck between now and Election Day.