A recent article in the Financial Times, Drug Industry faces ‘tidal wave’ of litigation over opioid crisis (subscription may be required), notes that officials at every level of government – states, cities and counties – are launching suits against companies that make or distribute opioids seeking a tobacco-style settlement to help deal with the epidemic. Noting that these suits are a harbinger of the quarter of a trillion dollar tobacco settlement, government entities like the District of Columbia are putting out requests for proposals inviting firms to bid for contracts that will generate up to $45 million in contingency fees for the successful bidders.
Wisconsin’s statutory cap on noneconomic damages for medical malpractice cases has taken many twists and turns over the past 30 years. A recent state court of appeals decision in Mayo v. Wis. Injured Patients & Families Comp. Fund has added to this seemingly never-ending saga by striking down the legislatively enacted $750,000 cap on noneconomic damages. The Supreme Court of Wisconsin will likely have the final say.
The Federalist Society's Article I Initiative is focused on the critical issue of why the modern Congress is not functioning as the most powerful branch as envisioned by the Framers. In order to help engage new thought and discussion about the proper role of the Congress, the Initiative has just launched an exciting new writing contest aimed at younger* thinkers with the theme, "Restoring the Constitutional Congress."
Talk of the “deep state” is much in the air these days. To some, the deep state refers to what they see as a conspiratorial intelligence community leaking secrets. To others, the deep state refers to what they see as an out-of-control bureaucracy out to bury – or at least trump – President Trump’s initiatives.
While professional licensing can have an important role to play in protecting consumers, the proliferation of state occupational licensing regulations over the past fifty years raises important competition policy concerns. Unnecessary licensing restrictions can hamper free market competition and workforce mobility. Innovation and entry from new business models can suffer.
The disconnect between the legal academy and the world it prepares students for can be stark. By one estimate, only 13% of professors at top-100 law school are conservative. By comparison, approximately 45% of federal circuit judges were appointed by Republicans, with more to come (137 seats lie open to President Trump to fill.) This has more real-world consequences than the political imbalance of, say, your average sociology department: a law school grad appearing before a Bush-appointed judge, who is not thoroughly familiar with originalist or conservative thinking, will not be best able to represent their client.
It was therefore a welcome surprise when, in early June, Harvard Law School named a conservative as its next dean. That HLS did this at a moment of increasingly acute partisan divide on campuses and in the country at large only underscores the importance, and boldness, of the move.
In Pennsylvania Environmental Defense Foundation v. Commonwealth, the Pennsylvania Supreme Court overturned the standard that had been applied by the courts since 1973 when they review governmental determinations under Pennsylvania’s Environmental Rights Amendment (“ERA”). In so doing, the Court effectively re-set and re-established the ERA which was ratified in 1971.
Imagine taking a relic of 1971, plucking it out of that time, and dropping it down in 2017. Would it seem out of place? Would it have any relationship to the current social and political climate? For most of its history, Pennsylvania’s ERA had virtually no significant impact and was considered by the courts to be mostly aspirational. Until now.
Cryptocurrencies and open blockchain networks have made possible a new way to raise money to develop and maintain novel products and services—whether devices on the Internet of Things, new cloud services on the Internet, or even financial products and investments. This unprecedented form of crowdfunding, colloquially known as "Initial Coin Offerings," raises various legal and policy questions, and developers and investors are eager to have answers to these questions so that they can safely take advantage of this innovative model.
On February 10-11, 2017, the Yale Federalist Society hosted a conference celebrating Justice Clarence Thomas’s twenty-five years of service on the Supreme Court. The conference featured panels exploring Justice Thomas’s jurisprudence on subjects including the administrative state, criminal law, equality under the law, and executive power.
An article in the July 31, 2017, Bloomberg BNA Daily Labor Report notes that William Emanuel, a lawyer with Littler Mendelson PC and one of President Donald Trump’s two current nominees to the National Labor Relations Board, “signed an ethics agreement pledging to recuse himself for a two-year period from board cases involving any of his former clients as well as parties represented by Littler Mendelson.” The article further reports that Senator Elizabeth Warren (D-Mass.) has suggested that Emanuel should “also sit out any case involving the hotly contested question of whether employers can force their workers to sign class action waivers,” because he “has represented parties on the class action waiver issue in a case before the board, . . . his firm is counsel in a number of others[, and h]e has also co-written briefs in U.S. Supreme Court cases arguing that the agreements aren't unlawful restraints on employees’ right to engage in collective activity.” (Emphasis added.)
However, unless the standards for recusal are more stringent for nominees of President Trump than they were for nominees of President Barack Obama, Emanuel can ethically ignore Senator Warren’s suggestion and need not recuse himself in all class-action waiver cases, even though that is a “hotly contested” issue.