March 28, 2008

Frankly, I thought this AP story called "Scalia Criticizes News Media" was too dull to write about.

And when I noticed it again today while reading How Appealing, I was tempted to write a post about the existential angst of Howard Bashman — that poor man, writing a blog that flags each legal thing that makes the news, forced by his own chosen vision of the blog to post whenever the media-hungry justice lumbers out into the world and the Associated Press takes note. But I found the AP article just interesting enough to make me want to do this block and indent quote:
At a conference of [lawyers from the Food and Drug Law Institutea], Scalia said news organizations often fail to focus on the text of the laws the court interprets, citing accounts of last month's 8-1 decision that made it harder for consumers to sue makers of federally approved medical devices.

He singled out for criticism a New York Times editorial on the case headlined "No Recourse for the Injured."

15 comments:

George said...

Don't worry about it.

Most people scribble here without reading the texts of your original posts either.

MadisonMan said...

Does Justice Scalia know that headlines sell papers? Doesn't No Recourse for the Injured make you want to read about it? Would Federally approved medical devices not liable for damages, or some other more focussed-on-the-text headline, make you want to read more?

Simon said...

What's the old saw about how the NYT headline on the morning following armageddon would be "world ends; women and minorities hardest hit"? He's not wrong, but old media's never going to change. There are too many pressures on it to misreport. An 8-1 federal preemption case doesn't sell newspapers, but those mean robed dudes deny remedies to an injured man, that sells papers, and "the conservatives have taken over the supreme court so let's make a big fuss about it and elect some liberals to change that" sells the story to the editorial board.

This is, profoundly, a "more information" problem. I think it's pretty healthy that the internet allows those who do understand what's going on to explain cases to those who don't - granted, some have the same agenda as the NYT, but be that as it may - and better yet, for people to go directly to the text of not only the case but the law at issue (and these days, at the Supreme Court level, the briefs, even). Not everyone's going to do that, but the fact that it's possible makes me a little more hopeful that the truth will out.

Slim999 said...

"Does Justice Scalia know that headlines sell papers? Doesn't No Recourse for the Injured make you want to read about it?"

Hmmm ... let's examine the following headline:

"Hillary stabs Obama at Dem Debate."

Would you read the story? I'm pretty sure you would want to, whether it was true or not.

What Scalia is saying, and I think there is merit here, is that certain elements in the media attempt to make it appear that the Court is deciding what our laws will be, when in fact, it is voters who decide what our laws will be.

If the Congress says that you can't sue a pharmaceutical company, and the Supreme Court says that Congress has the authority to pass such a law, a headline that reports this action as resulting in "No Recourse For The Injured" is simply false.

No two ways about it. It's a media lie.

When newspapers (and bloggers) write false headlines, then I think there should be criticism, and I'm certainly not bored by it when the Chief Justice points it out.

There is most certainly "Recourse For The Injured!" They can recall the Representatives and Senators who passed the law in the first place.

The Supreme Court didn't make it harder for consumers to sue pharmaceutical companies ... the people did, through their elected representatives in the Congress.

But of course, you'd never learn that by reading the NY Times, because Timesmen apparently failed to watch Schoolhouse Rock when they were 12 years old.

former law student said...

If the Congress says that you can't sue a pharmaceutical company, and the Supreme Court says that Congress has the authority to pass such a law, a headline that reports this action as resulting in "No Recourse For The Injured" is simply false.

An excellent analysis, unfortunately resting on false premises. As the NYT article points out, Congress never intended to prevent those injured by FDA-approved products to sue their manufacturer. The law had never been interpreted that way for three decades. Suddenly, and not until the Roberts Court, this meaning has been read into the law. I believe this abrupt 180 reinterpretation of long-established law is what's known as judicial activism.

When it passed the 1976 law, Congress almost certainly had no intention of removing the right to sue. Senator Edward Kennedy, the Senate sponsor of the law, and Representative Henry Waxman, who sat on the House panel that approved it, have both said that Congress had no intention of granting the manufacturers immunity from lawsuits over injuries caused by their devices.

This means you won't be able to sue the company that manufactured your drugs with contaminated Chinese ingredients (FDA-approved), you won't be able to sue the company that manufactured your aircraft when it crashes (FAA-approved), and you won't be able to sue the company that manufactured the electronic widget whose EMI stopped your pacemaker from functioning (FCC-approved).

Paul Zrimsek said...

"Worthwhile Sicilian Initiative" would have done it for me.

Simon said...
This comment has been removed by the author.
Simon said...

Slim999 said...
"When newspapers (and bloggers) write false headlines, then I think there should be criticism, and I'm certainly not bored by it when the Chief Justice points it out."

For better or worse, Scalia isn't the Chief. ;) Actually, there's a neat typo in United States v. Rybicki, 354 F.3d 124 (2d. Cir. 2003) (en banc), you can find it on page 14 of the slip opinion just linked; the court notes that in City of Chicago v. Morales, "three Justices specifically endorsed the Salerno standard," citing Justice Scalia's dissent and that of "Thomas, J., joined by Rehnquist, C.J. and Scalia, C.J., dissenting" (emphasis added).

Simon said...

FLS, the question isn't what Congress "intended" to do, even assuming (falsely) that collective bodies have a unitary intent. The question is what Congress did do. That's exactly what happened in Ledbetter, for example: it doesn't matter what Congress, or any one member of Congress intended, it matters what they actually enacted. That's why Church of the Holy Trinity is held up as exactly the wrong way to approach statutory interpretation.

As to judicial activism, that's a term of many meanings, from the serious to the deeply silly (perhaps we should say "frivolous", since "silly" would seem an affront to the dignity of the learned professors who have leant their names to articles assuming the deeply silly premise that judicial activism is about counting how many statutes you strike down). As it's used in commmon political currency today, however, it means judges substituting their own views for what a law says. By that standard, it's hard to see how any opinion that follows the text could possibly be judicial activism.

Simon said...

(Addenda: Recent comment on same subject as previous comment here)

former law student said...

Simon, the Medtronic decision turned federal preemption doctrine on its head. It overturned existing law on implied preemption, which is the only type of preemption that could work here in the absence of express preemption, because suing manufacturers of faulty medical products does not impede FDA regulation, nor does it impede the objective of providing safe medical products.

Here's a snapshot of relevant implied preemption law from wikipedia: The final type of implied preemption is preemption because federal law occupies the field. In this situation, one must look at Congress's intent, and whether the federal law was meant to be exclusive in that area.

We will no longer be able to sue the manufacturers of any federally regulated products, unless Congress starts amending all the relevant statutes to enable us to sue once more. Considering that manufacturers have lobbyists and citizens do not, that will be a tough row to hoe.

Trumpit said...

"FLS, the question isn't what Congress "intended" to do, even assuming (falsely) that collective bodies have a unitary intent. The question is what Congress did do."

The game always being played, mostly by right-wingers, is what were the framers' of the Constitution original intent, as if they had a unitary intent. Thank you, Simon, for exposing the baldfaced lie of the Republican Machiavellians who interpret the Constitution to suit their corrupt personal agenda. I knew you were good for something.

Richard Fagin said...

Simon:

I can't disagree with you about the pressures to sell papers, and how that leads to headlines of the type Scalia criticizes.

On the other hand, so many journalists (and high-profile entertainment figures) have little understanding of the Constitution and how it and the law work. Ask Judith Miller. Or ask Rosie O'Donnell (So what if it's an amendment to the Constitution, there are CHILDREN at stake here, dammit!)

What Scalia criticized is a function of both.

Simon said...

Richard, I agree, and would add that those journalists who do understand tend to understand well enough to have an agenda. That's not a bad thing, per se (it's bad when there's feined disinterest, a la Greenhouse, but I make no secret of my cross-partisan affection for Lithwick) nor a universal thing (JCG is scrupulously down-the-middle) but it's generally true.

FLS, I alas lack the time to get into that argument today, so I'll beg a rain check.

Trumpit, I don't want to suggest I'm speaking for the entire "legal right," as it were, but certainly for those of us in the Scalia camp, we've never cared about original intent, in statutory or constitutional construction. Anyone who thinks we do just hasn't thought through the inherent tension between textualism and intentionalism, or, for that matter, read Scalia's book which explicitly disavows intentionalism.

Now, do people who call the CSPAN "republican" line talk about the "intent of the framers"? Sure. But these are the same people who talk about wanting "strict constructionsists like Justice Scalia," an absurd proposition since Scalia isn't a strict constructionist (explicitly disavows it, in fact), and the only context in which most judges agree on strict construction, it's to a liberal result that law-and-order types are leary of - the canon that penal statutes are strictly construed.

Simon said...

The problem, Trumpit, may be that you think that "originalism" is the theory of "original intent." But it isn't. Originalism - as I tried to make clear back when I was actively maintaining its WP article - is a family of theories. Original intent is one of them, but very few legal conservatives adhere to it. The one most of us adhere to holds that the original public meaning of the text is controlling.