The Supreme Court, without Justice Ruth Bader Ginsburg, is back after the holidays for work on five cases this week. A delight for some and anathema for others, Ginsburg will continue to issue judgments on cases she does not hear in person by reading briefs, filings, and transcripts of the oral arguments.
…has not missed an argument since she joined the court in 1993.
Chief Justice John Roberts, who announced Ginsburg’s unavailability at the start of the public proceedings, did not state when she would return. Ginsburg, who has attained cult-like status among the progressive SJW set, has not missed an argument since she joined the court in 1993. Her recovery from cancer surgery on Dec. 21 for malignant lung tumors is keeping her at home, but her prognosis is sound, with a court announcement that “post-surgery, there was no evidence of any remaining disease” and that “no further treatment is planned.”
What will she be working on from her sick bed? Here is the rundown for the high court:
Merck v. Albrecht begs the question of why, in a short commercial for a drug, most of the time is dedicated to warnings? Lawyers, of course! Merck went to the Food and Drug Administration (FDA) and mentioned a possible side effect, asking if the drug warning information should include it. The FDA said no, and now Merck wants to be held harmless by state courts for not warning people in the first place, something the FDA said it shouldn’t do.
In 2009, the Supreme Court held that the FDA’s approval of a drug label does not, by itself, insulate the manufacturer from liability under state tort law and a “failure to warn” claim. At the same time, the court recognized that if “the FDA would not have approved” the label demanded by state law, then the manufacturer could invoke an “impossibility” preemption defense.
The question presented is: Is a state-law failure-to-warn claim preempted when the FDA rejected the drug manufacturer’s proposal to warn about the risk after being provided with the relevant scientific data; or must such a case go to a jury for conjecture as to why the FDA rejected the proposed warning?
In Obduskey v. McCarthy & Holthus, the court will decide whether the Fair Debt Collection Practices Act applies to non-judicial foreclosure proceedings. The act applies to debt collectors and was an attempt to civilize them by eliminating some of their more abusive practices. There is presently a division in the circuit courts as to whether such foreclosures are covered, and the Supreme Court takes the case to settle the issue, stating “this case is the perfect vehicle for resolving the widespread disagreement over this important issue.”
If she’s back on the bench quickly, Ginsburg may be in time for two cases. In Herrera v. Wyoming, the court will rule on whether an 1868 federal treaty permits the present-day criminal conviction of a Crow tribe member who engaged in subsistence hunting for his family. Fourth Estate v. Wall-Street.com will settle another split in the circuits, this time over what precisely sets the time a copyright is recorded: when application and fees are delivered or when the office processes them.
Franchise Tax Board of CA v. Hyatt is the big case, however. The question the court will resolve is whether another Supreme Court ruling from 1979 in a case called Nevada v. Hall, which “permits a sovereign State to be hauled into another State’s courts without its consent,” should be overruled.
The case arises from allegations that Gilbert Hyatt evaded California taxes by falsely claiming to have moved to Nevada. After the Franchise Tax Board of California concluded that Hyatt owed millions in unpaid taxes, Hyatt, a citizen of Nevada, sued the board in Nevada court, alleging fraud and other torts. That litigation began in 1998. Eventually, Hyatt won a trial judgment of almost half a billion dollars — though a complex series of appeals, including two trips to the U.S. Supreme Court, has reduced the figure to about $100,000 plus the possibility of costs.
Forty-five states signed on to a brief asking the court to overturn its ruling in Nevada v. Hale and protect them from other states’ courts. If only the rest of us had that option.
Rulings in these cases will be released by summer.
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