Any lawyer practicing for more than five minutes has heard of the lawsuit called Jarndyce and Jarndyce. Charles Dickens constructed his great (in size and merit) novel Bleak House around the fictitious case, which drew together the fates of a large cast of characters. Jarndyce and Jarndyce concerned the interpretation of a will, occupied the
FDA Cigar/Pipe Warnings Go Up in Smoke
We light up a cigar maybe once a month. Of course, they’re no damned good for us. If we had any doubts, the headache and swamp-breath the next day would remove them. Still, a spirit of convivial dissipation tells us to smoke’em if we’ve got’em. No need to warn us off cigars, or the inevitable
Watch Your (Deposition) Language
Our ongoing tour of Famous Novels We Missed Along the Way has introduced us to some splendid prose. Thackeray and Trollope insert subtle judgments just beneath the surface of their narratives. They can teach us much about how to deliver an opening statement that is a powerful argument precisely because it does not sound like
A Few More Words on the D.C. Cir.’s Dumping of the Drug Price Disclosure Rule
Administrative law is having a moment. Next year is the 75th anniversary of the Administrative Procedure Act (“APA”). We have mixed feelings about attending the party. The games will be saddled with unclear and unevenly applied rules. Instead of goody bags, we will be forced to disgorge treasure on the way out. But if there
More Preemption of Breast Implant Claims
Back in the Pleistocene era when we toiled in law school, it seemed as if modern tort law developed as the result of a cross-continental game of ping pong played between the California and New Jersey courts. That still seems to be the case. Sure, there is the occasional, horrific verdict in flyover country that
The Second Circuit Puts the Lotion Claim in the Preemption Basket
Why does that last half-inch of conditioner seem to last as long as the entire rest of the bottle? This question is merely the philosophical beginning of our morning ablutions. The time is not billable. Pity. But rinse and renewal are not irrelevant to our thinking. Fresh face, fresh mind. Some of the best ideas
Maryland Federal Court Holds Breast Implant Claims Preempted
This week we are pleased to report on yet another breast implant case in which a plaintiff’s effort to circumvent preemption failed. In Diodato v. Mentor Worldwide LLC, 2020 WL 3402296 (D. Md. June 19, 2020), the plaintiff brought manufacturing defect, breach of warranty, and failure to warn claims that were typically skimpy in
SDNY Dismisses Contraceptive Case on Grounds of Preemption and Failure to Plead Fraud
We are not surprised that some readers dissented from our judgment last week that the Billions series is trash, albeit fun trash. We should be accustomed to this sort of thing. Friends constantly pepper us with praise for allegedly realistic depictions of our business. It used to be predominantly about Law and Order, but
Fifth Amendment Assertions by Former Employees Held Not to Count Adversely Against Corporate Defendant
We’ve been reminiscing often lately about our days as a federal prosecutor. Part of that is pure nostalgia. Part of it is wondering about the road not taken. Part of it is explaining to others why the show Billions is so crazily unrealistic.
The Covid-19 lockdown has sent us scurrying through the streaming services in
The Primary Jurisdiction Hits Keep on Coming
Last Thursday, Richard Dean gave us yet another excellent guest-post on primary jurisdiction. That under-appreciated doctrine is to Richard what preemption is to Bexis, or what dog shows are to Rachel, or what Ian Fleming and Dashiell Hammett (whose birthdays coincided with Richard’s May 28 post) are to us.
We had selected primary jurisdiction with