One of the intriguing things about cases decided by a jurisdiction’s highest court is that pronouncements by such courts can often have far-reaching implications. Sometimes they pan out, as the application of the First Amendment to the FDA’s ban on off-label promotion seems to be doing following Sorrell v. IMS Health, Inc., 564 U.S.
Sometimes we get an opinion back from a court, and the reasoning leaves us scratching our heads and wondering, “Where did that come from?” In the opinion, the court has decided the case on something that neither party ever argued. We blogged about a case like that once, here. In that case at least,
We’ve blogged about the United States Supreme Court’s pending personal jurisdiction cases before. Well, they pend no longer. Yesterday the Court unanimously (with a couple of concurrences) ruled that resident plaintiffs injured by products originally manufactured and sold elsewhere could sue a nationwide company like Ford – that “purposefully avail[ed] itself of the privilege
We recently came across the law review article, E. Lindenfeld, “Clear Evidence Clarified,” 75 Food & Drug L.J. 346 (2020). Since it cited and critiqued a number of our blogposts, we thought it was appropriate to reply.
Our initial impression is that the Lindenfeld article is comparatively reasonable – that is, compared to some prior
We have another guest post by friend-of-the-blog, Dick Dean of Tucker Ellis, along with his associate, Emmanuel Sanders. This post speculates on whether recent personnel changes on the United States Supreme Court might mean the end of the case we call the “number of the beast,” Wyeth v. Levine, 555 U.S. 555
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
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
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
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
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