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Category: Current Events

5

Jury Finds for Merck: Will its Critics Notice?

The NJ jury hearing the latest Vioxx case found Merck & Co. not liable for the death of Frederick “Mike” Humeston after seven and a half hours of deliberation. The ruling contrasted with an earlier Texas jury’s determination that Merck was liable for the death of Robert Ernst.

Following the Ernst verdict, a hue and cry arose against the jury system, with some claiming, for instance, that “this incident . . . raises serious questions as to the competence of lay jurors to resolve technical issues.” Now that we’ve another anecdote in hand, is it possible that these earlier critics owe the American jury system an apology?

10

Alito: The Business Friendly Justice?

Larry Ribstein has a great new post up on the jurisprudence of Third Circuit Judge Samuel Alito, a potential SCOTUS nominee. He sums up:

In short, Alito has displayed a marked tendency to enforce contracts as written, specifically including choice of law/forum and arbitration provisions that are intended to mitigate litigation costs. He’s also obviously aware of the problems that can be caused by lax proof standards and open-ended liability.

On the list that Prof. Ribstein has created, I was particularly interested in In re Burlington Coat Factories Sec. Lit. Prof. Ribstein says that decision involves a “deni[al] securities claims for failure to adequately allege scienter and materiality, and for lack of a duty to update.” My reading of the decision produced a somewhat more complicated picture, which may give some insights into Alito’s opinions about securities complaints.

First, unlike the district judge whose opinion the Third Circuit was passing on, Alito’s opinion is significantly more respectful of the pleading standard, reversing (in effect) a dismissal on materiality grounds. This decision – if representative of Alito’s larger jurisprudence – suggests that he is not particularly hostile to securities plaintiffs. In the end, the opinion does dismiss claims on 9(B) grounds, but with leave to re-plead.

Most significantly, the Judge appears to buy into the efficient capital markets hypothesis without hesitation, dismissing one claim which failed to result in a market reaction with the following reasoning.

In the context of an “efficient” market, the concept of materiality translates into information that alters the price of the firm’s stock. . . . This is so because efficient markets are those in which information important to reasonable investors (in effect, the market) … is immediately incorporated into stock prices. … Therefore, to the extent that information is not important to reasonable

investors, it follows that its release will have a negligible

effect on the stock price.

There are two basic problems with the idea that non-price-movement should mean immateriality as a matter of law. First, there will be times when market-wide distortions will dampen reaction to disclosures — which is why we require litigants to conduct expensive loss causation analyses which correct for the effect of the market-basket. Second, the behavioral finance literature, summarized by Ribstein (in a great paper) here, should give pause to judges, plaintiffs and others who seek to rely heavily on the ideal of a perfectly well-functioning market. To be fair, we can’t blame Judge Alito for not being aware of this literature back in 1997, but it would be interesting to know what he thinks today.

Needless to say, if I were on the judiciary committee, we’d have fewer questions on intellectually moribund subjects like con law, and many more of the following type(s): “How should judges go about evaluating the question of whether the stock market is fully efficient? Can securities class actions survive evidence of irrational decisionmaking?”

[UPDATE: I've investigated Judge Alito's securities decisions further here.]

1

Miers Withdraws

The news comes as no surprise. There have been so many hints about it lately. Also, in a week where indictments of top Bush officials are likely to come down, the announcement makes particular stategic sense. The news media won’t have a long time to dwell on Miers.

Did the blogosphere play a role? A few days ago, I debated with Daniel Glover of the Beltway Blogroll about the influence of bloggers on the Miers appointment. I wrote:

In essence, a set of virtual confirmation hearings are being held in cyberspace, and the fate of the nomination may well be decided before the actual hearings in the Senate even begin.

The cyberhearings on Miers are now over . . . which is good because I was growing weary — very weary — of reading post after post about Miers. Although I’m writing one now . . .

4

What Should Democrats Do Regarding Harriet Miers?

miers1a.jpgPaul Horwitz at PrawfsBlawg raises the difficult strategic dilemma for Democrats on the Harriet Miers nomination:

Therein lies the Democrats’ dilemma — actually, a double dilemma. 1) They do not want to oppose Miers loudly if they think her replacement might be a Luttig or a Brown, both because those judges are a more potent threat to their desired outcomes and because such nominations would be a political and fundraising prize for conservatives. 2) They also may not want to be on record as viewing mediocrity as a disqualification for the Court, since it constrains their own future choices.

Put slightly differently, the argument for Democrats in favor of Miers is this: Although Miers is relatively unknown, there are some indications that she might be moderate, even liberal, on key issues. An alternative replacement for Miers might well be much more firmly committed to conservative positions and be a more reliable conservative vote. If Miers turns out to be a consistent conservative vote, there are many indications that she won’t be a great superstar on the Supreme Court, and hence, she won’t be as effective as a replacement who might very well be a superstar. Furthermore, if Miers gets appointed, it will perpetuate great tensions amongst the Republicans.

Should this argument incline Democrats toward supporting Miers?

The liberal and political strategist in me is enticed by this argument. On the other hand, the intellectual and academic in me bristles at putting somebody on the Supreme Court who, by all indications thus far, does not seem to have the qualifications to be a great Supreme Court jurist. Ideally, I want a Supreme Court filled with brilliant distinguished jurists.

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0

Preparing for a Bird Flu Pandemic

pandemic3.jpgBird flu has now captured the attention of the news. While I’m generally not one to become overly concerned with armaggedon scenarios, a flu pandemic strikes me as a particularly realistic and frightening possibility. Pandemics occur periodically, and the experts all seem to be extremely concerned.

I believe that it is important to view this as a national security issue. National security has become almost synonymous with the protection against terrorism, and we assess the success and failure of government officials in keeping us secure primarily with terrorism in mind. But national security should also be understood as the ability to prevent and respond to natural disasters and outbreaks of disease. The destruction terrorists might cause is often small when compared to what nature can do. According to Newsweek:

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17

Originalists Take Over The Nation

Many progressives are opposed to the Harriet Miers nomination. Thus, it was no surprise to see an article in The Nation suggesting that she be quizzed about her beliefs, and that she be pressed not to extend the rights of corporations. What was surprising was the fact that the article, by Morton Mintz, relied on the bizarre adoption of a originalist interpretation of the Constitution. Mintz’s argument — which was mostly a plain-vanilla critique of corporate rights — contains (and relies on) this gem:

Who was the “person” whose basic rights the Framers of the Fourteenth Amendment, and the people who approved it, sought to protect? (The person was, of course, the newly freed slave. The history of the amendment, adopted in 1868–soon after the end of the Civil War–proves this.)

From there, Mintz argues that this original understanding shows that corporations should not be give Fourteenth Amendment protection.

Yes, that’s right. Mintz is suggesting that the Fourteenth Amendment should be construed according to how it was viewed in 1868. This is the interpretive methodology known as originalism — a school of thought more likely to be associated with the National Review than The Nation.

If the amendment is read in an originalist way, Mintz is right that it would probably not cover corporations. The original understanding of the Fourteenth Amendment was that it was to help slaves; that’s more or less where the original understanding ends.

Of course, such a reading creates a blinding assortment of new problems for progressives. For example, the fact that the 1868 understanding of the Fourteenth Amendment didn’t cover women. Or Hispanics. Or gays. Or anyone else except for newly freed slaves. And yes, it didn’t cover corporations. So Mr. Mintz is right, in a sense. Originalism is certainly one way to restrict the rights of corporations — and everyone else.

Originalist arguments, similar to that Mintz employs in his article, are nothing new. A nearly identical argument — that the Fourteenth Amendment was meant to protect freed slaves, no one else, and that no further rights should be drawn from it — was made by Robert Bork in The Tempting of America. Advocates like Bork, taking the originalist methodology to its logical conclusion, have argued that originalism invalidates a whole host of civil rights and liberties.

Is The Nation really willing to endorse originalism in order to score a few points against corporations and Harriet Miers?

5

Miers: Is Karl Rove Chuckling?

rove.jpgFor all the talk about Harriet Miers, very little has yet been unearthed about her. Everybody seems unhappy. Many conservatives are extremely upset about the nomination. Liberals are underwhelmed but many seem to hold out hope for a Souter. There may be a lot of uncertainty about Miers, but there is some degree of certainty about how this White House operates.

The reactions about Miers certainly couldn’t have come as a surprise to the White House. I’m trying to imagine Karl Rove’s strategy. There must be, after all, some kind of strategy, unless Rove was taking a lunch break when Bush made the nomination. Could it just be cronyism? Or perhaps there’s something more. Here’s a nominee who has about as short a paper trail as a nominee can have, yet who is very well known to President Bush and others in the Administration.

After spending years cultivating the far Right, would the Administration suddenly abandon them? Or just make a really big blunder? I don’t see it. In the last presidential election, it became clear that Rove was not to be underestimated. I don’t totally understand what the Administration is doing here, but there must be a strategy to it. It’s hard for me to believe that this appointment was just a thoughtless bout of cronyism.

And regarding Supreme Court justices, David Bernstein of the VC has dubbed his new baby girl “a future Supreme Court Justice.” If the Harriet Miers nomination doesn’t work out, I think that Bernstein’s daughter would definitely be on the short list. After all, she has no paper trail and would serve on the Supreme Court for a very long time, which seem to be the leading qualifications to be on the Court these days.

0

Mormons Pick Nominees, Part II

I’m starting to see a strange pattern here. First it was Ginsburg. LDS Senator Orrin Hatch has publicly taken credit for Clinton’s decision to nominate both Ginsburg and Breyer, writing of a discussion with the former president:

Our conversation moved to other potential candidates. I asked whether he had considered Judge Stephen Breyer of the First Circuit Court of Appeals or Judge Ruth Bader Ginsburg of the District of Columbia Court of Appeals. President Clinton indicated he had heard Breyer’s name but had not thought about Judge Ginsberg.

I indicated I thought they would be confirmed easily. I knew them both and believed that, while liberal, they were highly honest and capable jurists and their confirmation would not embarrass the President. From my perspective, they were far better than the other likely candidates from a liberal Democrat administration.

And with Orrin Hatch’s advice and consent, first Ginsburg and then Breyer were confirmed. (There are conflicting views as to what this means).

Now, LDS Senator Harry Reid claims to be the inspiration behind the Miers nomination:

At the meeting we had with the president last week, we were in the office he has there; I was there, Frist was there, Leahy was there, and Specter was there, plus Andy Card and the vice president. I said, “The vice president got here in a very unusual way. He was chosen by you to find a candidate to be your vice president. You liked the person in charge of finding a candidate better than the people he chose.” I said, “I think that rather than rather than looking at the people your lawyer’s recommending, pick her.”

As a church member myself, I’m pleasantly surprised by the trend. Three of the last four nominees were initially suggested by co-religionists? Not bad, not bad at all. Perhaps we’re not electable as presidents, but it looks like we’re doing alright being the power behind the throne.

I would post on this issue further, but I’ve got to run and go refine my short list. Just in case the President calls to ask me about nominees.

(Cross posted at Times and Seasons).