The Court Tackles a Hard Case: Implications for ObamaCare?
The Supreme Court hears oral argument today in an important pre-emption case, Bruesewitz v. Wyeth, which asks whether the National Vaccine Injury Compensation Act of 1986 pre-empts state law “design defect” suits brought against vaccine manufacturers. I’ve discussed this complex case more fully in an op-ed at the Daily Caller, but in a nutshell, Congress passed the Act to address the risks inherent in vaccinations through a federal no-fault ”Vaccine Court” rather than through the vagaries of state tort law. It did so because the inability to make vaccines entirely safe, plus uncertainty surrounding causation, coupled with the penchant of state juries to discount those issues in favor of sympathetic plaintiffs, had rendered most manufacturers unwilling to produce needed vaccines at reasonable costs.
In drafting the statute, however, Congress left things unclear, to put it charitably. Thus, the Court will have to make sense of this language:
No vaccine manufacturer shall be liable in a civil action for damages arising from a vaccine-related injury or death associated with the administration of a vaccine… if the injury or death resulted from side effects that were unavoidable even though the vaccine was properly prepared and was accompanied by proper directions and warnings.
Although the Act allows victims to sue over manufacturing defects, conduct that would subject a manufacturer to punitive damages, and a manufacturer’s failure to exercise due care, nowhere does it define “unavoidable”—and there’s the nub of the matter. In the case before the Court, a three-judge Third Circuit panel decided unanimously for Wyeth, as did the district court. But in another case five months earlier, a nine-member Georgia Supreme Court, facing similar facts, decided unanimously for the plaintiff.
And behind it all is the question whether Congress should have pre-empted state law in the first place. It probably should have here, but that’s a close call. And the implications for ObamaCare are not absent in this case, which could be a portent of the complex and uncertain litigation that lies ahead if the scheme is not repealed. As I say at the outset of my post, hard cases make bad law, but bad law too makes hard cases, and this is one. Does anyone think that ObamaCare is anything but bad law? We’ll know once we figure out “what’s in it,” as the lady said.
The Case of the Missing Evidence
Last fall, the 9th Circuit Court of Appeals reinstated a lawsuit against Arizona’s K-12 scholarship donation tax credit program. Under the program, citizens can donate to non-profit organizations that help families pay for private school tuition, and in return, the donors receive a dollar-for-dollar tax cut. The 9th Circuit, ruled that the program violates the Establishment Clause of the First Amendment, because many taxpayers choose to donate to religious scholarship-granting organizations whose scholarships are only usable at religious schools. This, in the Court’s view, meant that the program unconstitutionally favored religious scholarship-seeking parents over secular ones.
Supporters of the program will soon be appealing this decision to the U.S. Supreme Court. They’re very likely to win, for a variety of reasons. Foremost among them, the Establishment Clause forbids only governments from favoring religion, but imposes no similar limit on individual citizens. It is for this reason that charitable tax deductions can be claimed for donations to both religious and secular charities without running afoul of the First Amendment — even if taxpayers overwhelmingly choose to donate to religious charities.
In rereading the original complaint, I noticed something interesting: even if the 9th Circuit’s misconstrual of the Establishment Clause were correct, plaintiffs still wouldn’t have a case. That’s because the evidence they presented did not — and still does not — support their claim that secular parents have been at a comparative disadvantage in obtaining scholarships. To see why, read on….
Twombly and Iqbal: Reality Check
In Bell Atlantic v. Twombly (2007) and Ashcroft v. Iqbal (2009), the Supreme Court gave trial courts more latitude to dismiss a lawsuit at a very early stage, before the parties have had a chance to engage in discovery (the often lengthy and expensive fact-finding stage of civil litigation), if judges think the suit is not founded on “plausible” allegations of wrongdoing.
There’s a rich, angry debate about the effect the decisions will have on dismissal rates of meritorious suits in lower courts. But the consensus among academics seems to be that both decisions will trigger a sea-change in lower court practice—one deeply unfavorable to plaintiffs.
We won’t know the real effect of these decisions for many years to come. But a 2007 study by the Federal Judicial Center on the effect of a trio of similarly controversial 1986 Supreme Court decisions (known as the “Celotex trilogy”) raises questions about dire claims that Twombly or Iqbal will dramatically change lower court practice.
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