As we write this, there is great uncertainty in the country. The intersection of state and federal law is a focus, as is the possibility that one or more of the many recent challenges to how states count votes for the presidential election will end up in the Supreme Court. The tension is palpable, in
Supreme Court
Barrett & Preemption − This Is Not a Long Blogpost

Like we did with Justices Gorsuch and Kavanaugh, when they were first nominated, we took a look at Judge Amy Coney Barrett’s record on preemption. There wasn’t much. She’s authored exactly one opinion that discussed preemption, and that involved “complete” preemption under the Labor Management Relations Act. Her opinion in Boogaard v. National Hockey …
Looks Like A Slim, But Solid, First Amendment Majority

We’ve been watching the evolution of the Supreme Court’s thinking on First Amendment review of “speaker” and “content” specific prior restraints since we first noticed that emerging doctrine in the pharmaceutical detailing case, Sorrell v. IMS Health, Inc., 564 U.S. 552 (2011). In Sorrell, however, it was unclear how much (if any) more…
Give Textualism a Try

Since we were involved in the Medtronic Infuse wars, we’ve been quite aware of Justice Gorsuch’s textualist views towards statutes since he wrote Caplinger v. Medtronic, Inc., 784 F.3d 1335 (10th Cir. 2015). In Caplinger he got a close look at the damage the Supreme Court had done to the plain meaning of the…
Guest Post – Primary Jurisdiction- More About That 16th Draft Pick

Here’s another guest post by friend-of-the-blog, Dick Dean of Tucker Ellis. Dick is a big fan of primary jurisdiction (if only more courts shared his enthusiasm), and this post deals with some recent Supreme Court precedent that is helpful to such arguments, and that might otherwise have been missed. As always our guest bloggers…
Guest Post – The Supreme Court Addresses Purposes and Objectives Preemption in a Surprising New Context

Today’s guest post is by Tucker Ellis‘ Dick Dean, a longtime friend of the blog and our most prolific non-Reed Smith guest blogger. This post is a follow-on to the Blog’s discussions of purposes and objectives preemption in light of increasing skepticism about this aspect of preemption by some members of the Supreme…
A Couple of Things

Here are a couple of things that happened recently (and no, we don’t mean a travel ban on Europe or the NBA cancelling the rest of its season). They’re not related, but separate posts would be too short.
First, last November we warned our colleagues that it was time to start thinking of alternative grounds…
Breaking News – Supreme Court Personal Jurisdiction Certiorari Grants

Today the Supreme Court agreed to take another shot at “stream of commerce” personal jurisdiction in two automotive cases. Here are the case pages at SCOTUSBlog: Ford Motor Co. v. Bandemer, No. 19-369, and Ford Motor Co. v. Montana Eighth Judicial District Court, No. 19-368. The decisions being appealed are Bandemer …
Viewing Buckman as a Logical Contradiction Decision

As we mentioned in our recent Preemption Teaser post, last month’s concurrence in denial of certiorari in Lipschultz v. Charter Advanced Services (MN), LLC, ___ S. Ct. ___, 2019 WL 5300908 (U.S. Oct. 21, 2019), provides an indication that, at least to some extent, Justice Thomas might have found a kindred spirit of sorts…
Supreme Court Preemption Teaser

It wasn’t an opinion, or a grant of certiorari, but it may be important nonetheless. In a concurrence in the denial of certiorari the other day, Justices Thomas and Gorsuch expounded on their view of how preemption works (or doesn’t work) in the context of a decision by a federal agency (not the FDA…