Department of Justice Announces It Will Not Prosecute Nearly 100 Incidents Allegedly Involving Torture

In 2009, U.S. Attorney General Eric Holder directed special prosecutor John Durham to investigate the interrogations of certain detainees, alleged to have been tortured, and to determine whether federal law may have been broken. Durham has been actively investigating these cases – some of which were fatal. Attorney General Holder today announced that a full criminal investigation will be launched into two of those cases, both of which resulted in the death of the detainee. The remaining 99 instances of alleged abuse will be dropped from Durham’s ongoing investigation.

According to Attorney General Holder’s statement:

Mr. Durham has advised me of the results of his investigation, and I have accepted his recommendation to conduct a full criminal investigation regarding the death in custody of two individuals. Those investigations are ongoing. The Department has determined that an expanded criminal investigation of the remaining matters is not warranted.
While AFJ applauds the fact that two of the incidents will be criminally investigated, we continue to believe that accountability must go to the highest levels and include those who crafted the Bush Administration’s torture policy – including the lawyers who twisted the law to justify torture as an acceptable tactic in the so-called war on terror. AFJ has long believed that accountability for torture is necessary to ensure that these gross human rights abuses do not happen again and to restore our country’s reputation as a nation of laws. The AFJ film Tortured Law explores the role government lawyers played in authorizing torture, and calls for a full-scale investigation of those who ordered and justified torture.

Two Nominated to District Courts

President Obama has nominated Judge David Ogden Nuffer to the United States District Court for the District of Utah, and Thomas Owen Rice to the United States District Court for the Eastern District of Washington.

Judge Nuffer is a United States Magistrate Judge for the District of Utah, a position he has held on a full-time basis since 2003 and held on a part-time basis from 1995 to 2003. Mr. Rice is an Assistant United States Attorney for the Eastern District of Washington, a position he has held since 1987. The seat to which Judge Nuffer has been nominated is considered to be a judicial emergency by the Administrative Office of the U.S. Courts.

For the most up-to-date and comprehensive information on judicial nominations, visit the Alliance for Justice’s Judicial Selection Project webpage.

Senate Judiciary Committee Hears Testimony on Supreme Court’s Corporate Slant

Today, the Senate Judiciary Committee held a hearing on the Supreme Court’s ongoing pattern of putting the financial interests of corporate litigants above the rights of everyday Americans.

Chairman Leahy called the hearing to focus on three decisions from the recently-completed Court term: Wal-Mart v. Dukes, AT&T Mobility v. ConcepciĆ³n, and Janus Capital Group v. First Derivative Traders. These cases are representative of how, as Chairman Leahy described it, “the most business-friendly Supreme Court in the last 75 years” is eroding the legal protections American consumers and employees rely on, particularly in tough economic times.

Among the witnesses was Betty Dukes of Pittsburg, CA, a seventeen year veteran employee of Wal-Mart and lead plaintiff in the gender discrimination case broken up by the Court last week. Dukes remains upbeat in her hope that, even without the ability to fight Wal-Mart as a unified class, women subjected to the retail giant’s discriminatory culture and practices will one day obtain justice. However, she testified that many women will give up because it’s too hard to fight the company alone, and especially difficult to fight one’s own employer.

Professor Melissa Hart of the University of Colorado Law School testified to the common threads between the Wal-Mart and AT&T decisions. In both cases, the same five-vote majority of the Supreme Court interpreted procedural rules in ways completely different from their original meaning and with hostility to the class action device. As a result, no court has reached or will be likely to reach the substance of the claims made in those cases. Questioned by Senator Franken, Professor Hart stated that the Court’s interpretation of the Federal Arbitration Act of 1925 was inconsistent with its legislative history and purpose, and that allowing corporations to write class action bans into fine print contracts incentivizes small-dollar rip-offs of hundreds of thousands of hard working people. Franken has introduced the Arbitration Fairness Act in response to AT&T, which would amend the FAA and limit binding mandatory arbitration.

Senator Franken also took to task witness Andrew Pincus, the attorney who represented AT&T before the Supreme Court. Pincus, a partner at corporate defense giant Mayer Brown LLP, wrote in the New York Times and suggested in his opening statement that only plaintiffs’ attorneys looking to rack up huge fees would be hurt by the Court’s ruling. Franken noted that the average partner at Mayer Brown is paid over $1 million per year; Pincus, he said, is in no position to criticize others for a possible financial interest in the workings of the legal system.

Professor James Cox of Duke University School of Law testified on the likely fallout in the financial industry from the Court’s decision in Janus. The narrow and inapt definition adopted by the Court of who can “make” a false or misleading statement will greatly restrict the power of investors to recover damages and enforce anti-fraud laws. Only the Securities Exchange Commission will be able to go after many offenders, and even then there may now be loopholes. But the SEC, Cox explained, has only investigated, much less taken enforcement action, in 17% of resolved securities fraud cases, and it has been hesitant to take action against the biggest Wall Street firms. Connecting back to Wal-Mart, Senator Franken observed that the Equal Employment Opportunity Commission, the government body charged with pursuing workplace discrimination claims and to which many of Dukes’s colleagues may now have to turn, has a backlog of 80,000 claims to hear.

Senator Whitehouse observed that the procedural hurdles, arcane rules, and cramped statutory interpretations that characterize recent Supreme Court decisions might be summed up in two words: “corporation wins.” In closing, he extolled the role of jury in our constitutional design, and lamented the Court’s “steady addition of trouble, toils, and snares” between everyday Americans and their right to have their cases heard by their peers.

For complete analysis of how big business has fared before the Supreme Court, see AFJ's Corporate Court webpage.

Senate Passes Bill to Streamline Confirmation of Executive Branch Nominees

This morning, by a vote of 79-20, the Senate passed S. 679, the Presidential Appointment Efficiency and Streamlining Act of 2011, a measure that will significantly reduce the number of executive positions subject to Senate confirmation.

Specifically, a third of the current Senate confirmable positions—all minor posts—will now either not require confirmation at all or enjoy a streamlined confirmation process. Senators Charles Schumer (D-NY), Lamar Alexander (R-TN), Joe Lieberman (I-CT), and Olympia Snowe (R-ME) deserve praise for championing the legislation, which will help ease the backlog of nominations and free up senators’ time to focus on other important legislative business.

Conservative Bush Appointee Upholds Affordable Care Act

Today, the Patient Protection and Affordable Care Act (PPACA) withstood is most critical test yet: a three-judge Sixth Circuit panel composed of two conservative, Republican-appointed judges and one Democratic-appointed judge.

Challenges to the health-care law have been brought by conservative state attorneys general, bringing the novel argument that PPACA "regulates inactivity" and is therefore unconstitutional.

In upholding PPACA, Judge Jeffrey Sutton – noted as one of the most conservative of George W. Bush’s appointees and “the leading advocate in private practice of the federalism revolution” – ruled that the Act was within the authority given to Congress by the Constitution's Commerce Clause (Article 1, Section 8, Clause 3).

Before joining the bench, Judge Sutton argued that the Americans with Disabilities Act, Violence Against Women Act, Age Discrimination in Employment Act, Clean Water Act, Religious Freedom Restoration Act, and other civil rights statutes went beyond federal power.

Despite his clear record of challenging Congressional authority, Judge Sutton today wrote:
Regulating how citizens pay for what they already receive (health care), never quite know when they will need, and in the case of severe illnesses or emergencies generally will not be able to afford, has few (if any) parallels in modern life. Not every intrusive law is an unconstitutionally intrusive law. And even the most powerful intuition about the meaning of the Constitution must be matched with a textual and enforceable theory of constitutional limits, and the activity/inactivity dichotomy does not work with respect to health insurance in many settings, if any of them.
Judge Sutton concluded by observing that:
Today’s debate about the individual mandate is just as stirring, no less essential to the appropriate role of the National Government and no less capable of political resolution [as early debates over the First National Bank]. Time assuredly will bring to light the policy strengths and weaknesses of using the individual mandate as part of this national legislation, allowing the peoples’ political representatives, rather than their judges, to have the primary say over its utility.
A similar challenge to PPACA is currently before the Fourth Circuit.

The full Sixth Circuit opinion is available here. The ultimate fate of the Patient Protection and Affordable Care Act is expected to be decided by the Supreme Court, possibly as early as next term.

Supreme Court to Hear Case on Telephone Harassment by Businesses

This week, the Supreme Court agreed to hear Mims v. Arrow Financial Services. Arrow Financial Services (“Arrow”) is an originator, servicer, and collector of private student loans. Marcus Mims claims that Arrow harassed him about student loan payments by repeatedly calling his cell phone with an automated dialing system and leaving prerecorded voicemails. Mims sued in federal district court and argued that Arrow’s activity violated the Telephone Consumer Protection Act (TCPA), a statute passed by Congress to restrict the ability of companies to harass consumers over the phone. The district court dismissed the complaint and the Eleventh Circuit upheld the dismissal on the grounds that Congress gave state courts exclusive jurisdiction over TCPA lawsuits and that, therefore, federal courts lack subject matter jurisdiction. The Supreme Court granted Mims’ appeal.

A brief filed by the National Association of Consumer Advocates, an AFJ member organization, and the National Consumer Law Center states that, “[n]otwithstanding Congress’s clearly stated intentions, extensive non-compliance by national and international telemarketing and related industries under the Telephone Consumer Protection Act, 47 U.S.C. § 227 (TCPA) is not at all uncommon.” The organizations added that “this unfortunate state of affairs is the failure of the TCPA’s private right of action, § 227(b)(3), to provide the vigorous enforcement and effective deterrence mechanism that Congress envisioned when it adopted this law.” The result of the Eleventh Circuit’s rule, according to the brief, is that differing state standards apply to the TCPA that unfairly disadvantage some state residents. “Differences in degrees of federal consumer protection based on state residency are unacceptable; that the TCPA’s minimal standards of privacy are unenforceable now in at least two states – Maryland and Texas - is a result that should attain only with the explicit and unambiguous Congressional approval that is lacking here.”

If the Supreme Court sides with Arrow, consumers will be far less capable of holding companies accountable for unlawful telephone harassment in federal court and might enjoy weaker consumer protections based on the state in which they live.

Senate Confirms Three DOJ Nominees

Today the Senate confirmed three top Justice Department attorneys after a lengthy delay. James Cole, who has been opposed by Republicans because he supported using civilian courts to try suspected terrorists, was confirmed 55-42 to be Deputy Attorney General. Cole was nominated on May 24, 2010, and was successfully filibustered by Republicans in May of this year. Virginia Seitz was confirmed on a voice vote to head the Office of Legal Counsel (“OLC”), and she is the first Senate-confirmed OLC head since 2004. Finally, Lisa Monaco was confirmed on a voice vote to lead the National Security Division.

Seitz’s nomination is notable because the OLC is known as the "constitutional conscience" of an administration, offering authoritative opinions on complex and important legal matters about which agencies within the executive branch might disagree, and exercising judgment independent of the political will of the president. However, during the Bush Administration between 2002 and 2007, OLC lawyers such as Jon Yoo and Jay Bybee authorized every interrogation practice proposed by the CIA, even those that many legal experts agree violate our federal laws prohibiting torture and conspiracy to commit torture and war crimes; our constitutional ban on cruel and inhuman treatment; and the Geneva Conventions' absolute prohibition of torture.

For more information on the OLC and issues related to torture, please visit AFJ’s Accountability for Torture webpage.

Wealthy Special Interest Groups Can More Easily Influence State Elections

Yesterday the Supreme Court handed down its decision in Arizona Free Enterprise Club’s Freedom Club PAC v. Bennet (consolidated with McComish v. Bennett). At stake was States’ ability to combat the influence of wealthy special interests in elections. The Court decided in favor of the Arizona Free Enterprise Club.

Arizona voters passed the Citizens Clean Election Act in 1998. The Act created a detailed scheme under which candidates were required to demonstrate a certain level of support and abide by a strict set of fundraising and spending restrictions in order to receive public funds for a campaign. The Act allowed a candidate to receive additional funding if the candidate faced attacks from well-financed independent expenditure groups who spent a certain amount of money or if the candidate’s opponent refused public funds and spent over a certain amount. The Act was designed to combat government corruption, as Arizona had recently had a scandal involving bribery. The Act also leveled the playing field when a publicly-funded candidate faced a wealthy, self-financed opponent.

The petitioners claimed that the law was prohibited by the First Amendment, citing a host of “burdens” that discouraged them from outspending publicly-financed candidates.

The Court held that the matching funds system “substantially burdens protected political speech without serving a compelling state interest and therefore violates the First Amendment.” In order for the challenged legislation to stand, the State must show that the law furthers a compelling government interest and that it is narrowly tailored to accomplish that interest. Drawing from case law, the majority reasoned that the fund-matching scheme “plainly forces the privately financed candidate to ‘shoulder a special and potentially significant burden’ when choosing to exercise his First Amendment right to spend funds on behalf of his candidacy.” The majority pointed out that private contributions to a candidate’s campaign would result in each publicly funded candidate receiving public funds, producing a “multiplier effect.”

In addition, the majority argued that the assertion that the law combats corruption is illegitimate because it could keep candidates from spending their own money on their campaigns (and self-funding reduces corruption). The majority also stated that independent spending is a form of speech that “is not coordinated with a candidate” and thus does not encourage corruption. According to the majority, simply limiting the amount of money an organization or individual can contribute to a campaign sufficiently serves to combat corruption.

The four dissenting Justices, led by Justice Kagan, countered that the statute does not hinder free speech but encourages it by producing more speech. Justice Kagan also noted that Arizona enacted its campaign funding scheme to prevent corruption following a political scandal and that this goal is a compelling government interest. She pointed out that the law applies equally to candidates of all viewpoints, so given the controlling case law, it should pass First Amendment muster. “[W]hat petitioners demand,” she continued, “is essentially a right to quash others’ speech through the prohibition of a (universally available) subsidy program.”

By overturning Arizona’s election reform, the Court has closed off another avenue of reform designed to reduce the undue influence of corporate interests and wealthy candidates in political races.

Corporate Court Allows Foreign Companies to Aim for Big Profits in U.S. With Less Accountability

In a four-member plurality decision issued today, the Supreme Court limited the ability of individuals injured by a negligently manufactured foreign product to sue the manufacturer in state court. Robert Nicastro lost four of his fingers at work in New Jersey when his hand was accidentally caught in the blades of a metal cutting machine manufactured by J. McIntyre Machinery (J. McIntyre), a company incorporated in England. He claims the machine was missing a safety guard that could have prevented the accident. J. McIntyre sells machines, including the one that injured Nicastro, to an American distributor that it knows will sell the products in many regions of the U.S. Nicastro’s employer purchased the machine that injured him at a trade show in Las Vegas.

The Supreme Court of New Jersey held that personal jurisdiction over a foreign manufacturer is appropriate when the manufacturer uses a distribution scheme that targets a national market that includes New Jersey. Despite J. McIntyre’s long history of doing business in the U.S. and its attendance at trade shows throughout the country, the U.S. Supreme Court reversed and held that the company did not engage in conduct purposefully directed at New Jersey. Therefore Nicastro cannot sue J. McIntyre in New Jersey courts. Justice Breyer, joined by Justice Alito, concurred in the judgment but argued that the plurality created a rule that provides needlessly broad protections for corporate defendants. They argued that the plurality’s holding might not be appropriate in other settings in which a company targets a global market through a website or uses an intermediary like

The dissent, authored by Justice Ginsburg and joined by Justices Sotomayor and Kagan, argued that J. McIntyre should not be granted a free pass to avoid liability in every state court in the United States merely because it directed its distributor to attract customers “from anywhere in the United States.” McIntyre UK’s president described the company’s strategy in the following way: “All we wish to do is sell our products in the [United] States—and get paid!” Ginsburg argued that “[t]he machine arrived in Nicastro’s New Jersey not randomly or fortuitously, but as a result of the U.S. connections and distribution system that McIntyre UK deliberately arranged.” Invoking the reasonableness and fairness considerations at the heart of jurisdiction questions, the dissent asked the following rhetorical questions.

On what measure of reason and fairness can it be considered undue to require McIntyre UK to defend in New Jersey as an incident of its efforts to develop a market for its industrial machines anywhere and everywhere in the United States? Is not the burden on McIntyre UK to defend in New Jersey fair, i.e., a reasonable cost of transacting business internationally, in comparison to the burden on Nicastro to go to Nottingham, England to gain recompense for an injury he sustained using McIntyre’s product at his workplace in Saddle Brook, New Jersey?
By siding with J. McIntyre, the U.S. Supreme Court ensured that many individuals who are harmed by defective products made by foreign manufacturers will be denied access to justice even when the manufacturers are intentionally profiting from U.S. consumers.

Foreign Corporations Score Big Win in Corporate Court

In a unanimous decision issued today, the Supreme Court limited the ability of individuals harmed by defective foreign products to hold manufacturers accountable for their negligence.

Two 13-year-old children from North Carolina died in a bus accident while on a soccer trip to Paris, France. French investigators determined that a defective Goodyear tire on the bus caused the accident. The children’s surviving relatives sued three foreign Goodyear affiliates in a North Carolina court. The three affiliates collectively export at least 44,000 tires to North Carolina each year. The North Carolina Court of Appeals determined that Goodyear’s highly organized international distribution process constitutes such a purposeful injection into North Carolina’s stream of commerce that the state’s courts have general jurisdiction over the companies. As a result, the court held, the surviving family members should be allowed to sue the companies in North Carolina.

The Supreme Court reversed and held that the Goodyear affiliates’ lack of a connection to North Carolina precluded state courts from exercising general jurisdiction. The Court stated that the companies’ connections to the state “fall far short of the continuous and systematic general business contacts necessary to empower North Carolina to entertain suit against them on claims unrelated to anything that connects them to the State.” As a result, the companies will be allowed to make profits in a state, but individuals harmed by their negligence will be incapable of seeking compensation from the companies in that state. It will now be easier for sophisticated foreign companies whose products reach into all regions of the U.S. can now escape justice for the injuries their defective products cause.

Supreme Court Protects First Amendment Rights of Minors, Refuses to Carve Out New Exception to Free Speech

Today the Supreme Court held in Brown v. Electronic Merchants Association the First Amendment rights of minors to access expressive works will be protected from government restriction without proof that the content is seriously harmful and the restriction is narrowly drawn, and violent content is no exception.

California enacted a law restricting the sale of violent video games to minors. A group of video game manufacturers, distributers, and others challenged the law as a violation of the First Amendment. All parties acknowledged that video games qualify as speech, just like classic literature, comic books, movies, and television, all of which have been known to contain graphic depictions of violence. While certain types of speech, like obscenity, are historically unprotected by the First Amendment, California argued for a new exception for the transmission of offensively violent speech to minors.

The majority, which crossed the usual conservative/liberal lines on the Court, held that no new exceptions should be created, and therefore any attempt to regulate speech based on content must be subjected to the strictest judicial scrutiny. Although California advanced the laudable goal of protecting children’s development, it offered insufficient evidence that violent video games actually caused harm serious enough to warrant government restriction. As Justice Scalia noted, “there are all sorts of problems – some of them surely more serious that this one – that cannot be addressed by governmental restriction of free expression[.]” Even if the state could legitimately attack the slight harms associated with video games, the ban on sales was both overinclusive and underinclusive. Saturday morning cartoons and mere pictures of guns have been shown to have similar psychological effects, but were unaffected by the ban. The ban also allowed children with any consenting adult present to access the allegedly harmful material, but prohibited access by minors with consenting parents who weren’t actually present at the time of purchase. Content-based restrictions on speech that, like this law, are not narrowly tailored to the specific problem identified fail to meet the standard of strict scrutiny.

Justice Alito wrote separately to say that he believed the law was unconstitutionally vague in defining what games were restricted, but expressed concern, without deciding, that the interactivity and extreme content of some video games could warrant some government restrictions. Justice Thomas dissented on the belief that the “founding generation” did not understand the First Amendment as extending to minors. Justice Breyer dissented on the grounds that the potential harm to children was substantial enough and the restriction was slight enough to satisfy strict scrutiny.

With this decision, the Court has reaffirmed that the government may not limit the right of any person to access expressive works simply because they are shocking or offensive, but only when there is demonstrated harm and the restriction narrowly addresses that harm.

Ensuring Women Have Equal Rights Under the Law

In response to the Supreme Court’s decision in Wal-Mart v. Dukes, Senator Robert Menendez (D-NJ) and Representative Carolyn Maloney (D-NY) reintroduced the Equal Rights Amendment on Wednesday, according to the Huffington Post.

The proposed Equal Rights Amendment would amend the U.S. Constitution to explicitly recognize that women have equal rights under the law. According to Representative Maloney’s report, lawmakers first introduced the bill in 1923 during the women’s rights movement. Each year since that date, the bill was reintroduced, finally passing both houses and sent to the states to be ratified in 1972. The bill narrowly missed ratification in 1982, the deadline for states’ approval. Lawmakers have reintroduced it each year since.

“In the year 2011, it is truly an embarrassment for our nation that we still do not have gender equality enshrined in our Constitution,” Representative Jerry Nadler (D-NY) stated in a press release. “This profound omission undermines our standing as a nation committed to freedom and equality for all.” At this time, 160 members of Congress are sponsoring the bill.

Even in 2011, the struggle for equal treatment of men and women continues. Alliance for Justice’s special report notes that women’s average pay does not reach that of men. Even though Congress passed Title VII of the Civil Rights act of 1964 to outlaw employment discrimination, women still make only 77% of what men make, on average. Over her lifetime, a woman with a high school education will make $700,000 less than a man with the same education level. A woman who graduates from college will make $1.2 million less than her male counterpart, and a woman with a professional school degree will make $2 million less.

The need for the Equal Rights Amendment is clearer than ever after the Supreme Court’s decision on Monday in the Wal-Mart case. The Court blocked a sex discrimination suit brought by at least one million female Wal-Mart employees. The majority held that these women did not constitute a certifiable class and thus could not bring a class action lawsuit. As a result, these women will not be able to ban together as a group to hold the corporation liable for its discriminatory practices.

After Wal-Mart, everyday Americans will have greater difficulty holding large corporations accountable for their actions. The decision raised the threshold for forming a class, and class actions are often the best way for plaintiffs to bring large corporations to account. The Court has sent a message that it will protect big businesses from challenges to their unfair practices.

To learn more, see Alliance for Justice’s Corporate Court webpage and our special report on Wal-Mart v. Dukes.

Pharmaceutical Companies Permitted to Sell Physicians’ Private Information

Yesterday the Supreme Court held in Sorrell v. IMS Health that corporations have a First Amendment right to use private consumer information to increase their profits.

The federal and state governments require pharmacies to maintain certain prescription records. Pharmacies have begun selling information in these records to data mining companies that repackage the data for pharmaceutical companies. The information includes the name of the prescribing physician and extensive information about the physicians’ prescription practices and treatment plans, including the quantity, dosage and name of the drug prescribed, and whether the prescription was a refill, an existing prescription or a change in treatment. Pharmaceutical companies use the information to target sales pitches to individual physicians.

Vermont chose to restrict pharmacies from selling this sort of detailed marketing profile on individual physicians unless the prescribing physician consents. Physicians complained that allowing pharmaceutical companies to “spy” on their prescription records allows the drug companies to target doctors and put intense pressure on them to prescribe newer and more expensive drugs over equally effective and cheaper alternatives. Research shows that this sort of marketing has a tangible effect on a physician’s prescribing habits, even though the quality of prescribing decisions fares best when physicians rely on independent sources of information. Pharmaceutical representatives’ sales pitches often do not give a balanced representation of a drug’s advantages and disadvantages, leading physicians to develop a skewed view of the drug’s value and compromising clinical decision-making.

A group of data mining companies and a pharmaceutical trade group challenged the law, claiming that they had a First Amendment right to use the information or sell it, and that Vermont’s law discriminated against speech by pharmaceutical companies. The trial court found that the law was a permissible regulation of commercial speech, but the Second Circuit reversed.

Vermont argued that the pharmacies do not have an unfettered right to use the records as they wish, and noted that the Supreme Court has held that when the government compels production of otherwise private information, it may permissibly restrict further use of that information. Indeed, limits on the use and disclosure of medical records are widely accepted speech restrictions.

A brief filed by a coalition of consumer and public interest organizations, including AFJ member organizations Consumer Action and the Center for Science in the Public Interest, as well as Public Citizen, argued that the sale of private data does not constitute speech at all, and therefore is not entitled to special First Amendment protection. The groups warned that finding otherwise could compromise a host of other laws aimed at protecting the privacy of consumers. A host of other organizations filed amicus briefs, with the U.S. Chamber of Commerce and other big business supporting IMS Health, and consumer and privacy rights groups supporting the Vermont law.

The Court held that the Vermont law illegitimately burdened free speech. The majority said that this case called for heightened judicial scrutiny because the Vermont law restricted the First Amendment right to free speech. In order for a state law to survive strict scrutiny, the state must show that it has a “substantial governmental interest [in the relevant policy] and that the measure is drawn to achieve that interest.” Here, the majority said, the law does not serve the stated state interest of ensuring that pharmacies will only use prescriber-identifying information to process and fill prescriptions. “Under Vermont’s law, pharmacies may share prescriber-identifying information with anyone for any reason” besides marketing; therefore, the law does not further the stated interest. The majority also insisted that “creation and dissemination of information are speech within the meaning of the First Amendment,” thus rejecting Vermont’s argument (shared by the above-mentioned amici) that free speech is not at issue here.

The majority further stated that Vermont had created a restriction based on content which Vermont opposes rather than a general concern for privacy. “Vermont physicians are forced to acquiesce in the State’s goal of burdening disfavored speech by disfavored speakers,” they said. The majority also discredited Vermont’s concerns that doctors would feel pressured into prescribing certain drugs, which also worries patients, claiming that the same concerns might hold equally for other uses permitted by the law. In the majority’s view, the law does not legitimately advance the State goal of lowering medical costs and advancing public health.

Justice Breyer’s dissent contended that this case did not warrant heightened scrutiny. He stated that Vermont was merely preventing the pharmaceutical companies from improving their “sales messages” and that “this effect on expression is inextricably related to a lawful government effort to regulate a commercial enterprise.” Justice Breyer would consider whether the burden on free speech was disproportionate to the benefit of regulating the pharmaceutical industry rather than applying the demanding standard of heightened scrutiny. He also pointed out that such a standard would be similar to that applied to other regulatory schemes, such as those of the Food and Drug Administration, and that regulation based on the content of the speech or the identity of the speaker has never required heightened scrutiny. Further, he noted, “[n]othing in Vermont’s statute undermines the ability of persons opposing the State’s policies to speak their mind or to pursue a different set of policy objectives through the democratic process.”

Additionally, the information in question would not exist without government regulation. The burden on commercial speech is not great, and the statute does substantially further the important state interests of public health, privacy, and lower private health care costs.

Because the Supreme Court sided with the pharmaceutical industry, corporations will enjoy First Amendment protection to use and sell prescription information collected from doctors without their consent.

A Victory for Railroad Workers

Yesterday the Supreme Court held in CSX Transportation, Inc., v. McBride that the Federal Employers Liability Act (FELA) does not require a railroad employee to prove that a railroad’s negligence was the proximate cause of the employee’s on-the-job injury in order to hold the railroad liable for that injury. The employee must only prove that the railroad’s negligence played any part in the injury.
Robert McBride was a conductor working for the rail transportation company CSX. McBride was injured when a braking system he was using for approximately seven to eight consecutive hours caused his hand to fatigue and fall into one of the brakes. McBride required two surgeries to repair the damage. In addition to pain and numbness, he still suffers from limited use of his hand.

McBride sued CSX under the Federal Employers’ Liability Act (FELA), a statute designed to improve health and safety conditions for railroad workers. A jury awarded damages to McBride because the configuration of the trains required constant maneuvers that caused his fatigue. FELA states that a railroad company is liable for injury or death “resulting in whole or in part from the negligence of” that company. CSX challenged the jury’s finding of liability on the ground that the trial judge’s jury instructions did not add a requirement that the company’s negligence also had to be the proximate cause of the injury. McBride’s attorney argued that FELA contains no such requirement.

Justice Ginsburg affirmed that the proper interpretation of FELA is a test to determine whether or not a railroad “caused or contributed to” an employee’s injury is whether the “negligence played a part—no matter how small—in bringing about the injury” (quoting the jury instructions). This test, she said, does not include the “proximate cause” test from torts at common law. Thus, she rejected CSX’s assertion that the judge should have instructed the jury on proximate cause, which CSX defines as a “direct relation between the injury asserted and the injurious conduct alleged.” Justice Ginsburg noted that Congress enacted FELA to protect railroad workers and that previous cases have required a lower standard of negligence than traditional tort law. She also noted that with proper instructions (as in this case), juries would not be in danger of “award[ing] damages in far out ‘but for’ scenarios. Indeed, judges would have no warrant to submit such cases to the jury.”

Chief Justice Roberts’ dissent contended that the majority incorrectly interpreted Congress’ intent in writing the statute. He argued that the language at issue here was intended to eliminate contributory negligence rather than proximate cause. “[T]he ‘in whole or in part’ language,” he said, “simply reflected the fact that the railroad would remain liable even if its negligence was not the sole cause of injury.” By construing the statute this way, Chief Justice Roberts insisted that proximate cause should still be necessary for liability in a FELA case, which would raise the threshold for negligence and block more railroad workers from holding their employers accountable for their injuries.

Because the Supreme Court sided with McBride, railroad employees and their survivors will continue to be able to hold negligent employers responsible when they are injured or killed on the job.

Corporate Court Protects Drug Manufacturers That Fail to Warn Consumers of Health Risks

Today the Supreme Court’s conservative majority held in PLIVA v. Mensing that a generic-drug manufacturer cannot be held liable in state court for failing to inform the FDA that its label inadequately warns consumers of health risks. Generic drugs currently make up 75 percent of the prescription drug market.

Gladys Mensing sued PLIVA for failure to warn and misrepresentation in state court after a generic drug that PLIVA manufactured caused her to develop a severe and irreversible neurological movement disorder. Mensing claimed that PLIVA failed to take steps to change the label warnings despite mounting evidence that the drug carried a far greater risk of the disorder than initially indicated.

PLIVA argued that the Hatch-Waxman Amendments, the governing federal law, impliedly preempts Mensing's state claims. PLIVA claimed that simultaneous adherence to state and federal law is impossible because federal law requires generic labels to be identical to labels approved for the name brand. As a result, PLIVA stated that unilaterally strengthening the warning on the generic label to avoid state law liability would violate federal law requiring identical labels.

Mensing responded that state law claims against a generic drug manufacturer should not be preempted because the manufacturer could have proposed a label change for FDA to approve without making a unilateral change. In addition, Mensing argued, the Hatch-Waxman Amendments must be read with other FDA statutes that are meant to ensure that drugs are safe for consumer use.

The Court sided with PLIVA and held that a generic drug manufacturer may escape state tort liability even if the manufacturer refused to contact the FDA about newly discovered health risks. The opinion stated that, because the FDA must first approve a change to a label, the manufacturers “cannot independently satisfy those state duties for preemption purposes” while adhering to federal law. As a result, the Court stated, the Supremacy Clause requires that the Hatch-Waxman Amendments preempt victims of inadequate generic-drug warning labels from seeking compensation for injuries in state court. The Court previously held in Wyeth v. Levine (2009) that lawsuits against manufacturers of brand-name drugs for inadequate warnings were not preempted by federal law and could go forward. The Court held in Wyeth that FDA regulations allowed brand-name drug manufacturers to make unilateral changes to their labels to strengthen safety warnings and satisfy their state tort law duties.

Justice Sotomayor’s dissent stated that the Court “invents new principles of pre-emption law out of thin air to justify its dilution of the impossibility standard.” The dissent also called the majority’s new theory of the Supremacy Clause a “direct assault” on precedent stating that a federal preemption defense requires a “strong showing of a conflict to overcome the presumption that state and local regulation can constitutionally coexist with federal regulation.” The dissent reiterated that generic manufacturers have a duty under federal law to monitor the safety of their products and a mechanism for proposing a label change when such a change is necessary. A generic manufacturer, Justice Sotomayor wrote, should “usually be unable to sustain their burden of showing impossibility if they have not even attempted to employ that mechanism.”

The dissent also identified three “absurd consequences” that will result from the Court’s decision. First, generic drug consumers will have no access to compensation when they are injured by inadequate warnings. This creates an “arbitrary distinction” between brand-name and generic-drug consumers that Congress did not intend to create. As a result of this decision and the 2009 Wyeth decision, the majority concedes that a consumer’s ability to seek compensation for injuries depends on whether a pharmacist fills a prescription with the brand-name or generic version of a drug. Many states allow pharmacists to unilaterally make such substitutions. Second, generic-drug manufacturers will no longer have the same state-law incentives to monitor and disclose safety risks that brand-name manufacturers have. As the dissent observed, “brand-name manufacturers often leave the market once generic versions are available, meaning that there will be no manufacturers subject to failure-to-warn liability.” Third, the decision undercuts the goals of the Hatch-Waxman Amendments to increase the consumption of less expensive generic drugs. Doctors will be more hesitant to prescribe generic drugs and patients will be less likely to take them because generic-drug manufacturers will now face weaker safety incentives.

As a result of this decision, individuals harmed by inadequate warnings on generic-drug labels will be unable to seek compensation for their injuries in state court even if the manufacturer fails to abide by its legal obligation to inform the FDA of newly discovered health risks.

Senate Judiciary Committee Hearing and Executive Business Meeting

Today the Senate Judiciary Committee held over votes on the nominations of Stephen A. Higginson, nominee to be United States Circuit Court for the Fifth Circuit; Jane M. Triche-Milazzo, nominee to the United States District Court for the Eastern District of Louisiana; Alison J. Nathan and Katherine B. Forrest, nominees to the United States District Court for the Southern District of New York; and Susan O. Hickey, nominee to the United States District Court for the Western District of Arkansas, until the committee’s next business meeting. The committee did not vote on the nomination of Steve Six to the United States Circuit Court for the Tenth Circuit, which was also on the agenda.

Yesterday the Senate Judiciary Committee held a nominations hearing for five nominees: Judge Christopher Droney, nominee to the Second Circuit Court of Appeals; Robert Scola, nominee to the Southern District of Florida; Robert Mariani, nominee to the Middle District of Pennsylvania; and Cathy Bissoon and Mark Hornak, nominees to the Western District of Pennsylvania. Senator Richard Blumenthal (D-CT) presided and Senator Chuck Grassley (R-IA), the ranking Republican on the Committee, joined Senator Blumenthal in posing questions to the nominees.

For the most up-to-date and comprehensive information on judicial nominations, visit the Alliance for Justice’s Judicial Selection Project webpage.

Senate Confirms Michael Simon to the District of Oregon

The Senate has just confirmed Michael Simon to serve on the United States District Court for the District of Oregon by a vote of 64-35, with eleven Republicans joining all of the Democrats. Judge Simon fills one of the 112 vacancies in the federal courts, and a seat that’s also considered to be a “judicial emergency” by the Administrative Office of the Courts. Judge Simon was initially nominated on July 14, 2010, and he’s twice been reported out of the Senate Judiciary Committee on lopsided votes, but Republicans have nonetheless unnecessarily delayed his confirmation for almost a year.

The Corporate Court: Your Rights v. Corporate Interests -- Now Available Online

On Saturday, June 18, Alliance for Justice hosted a panel discussion at the annual Netroots Nation convention in Minneapolis.

Our panelists -- Senator Sheldon Whitehouse (D-RI), Dahlia Lithwick (Slate), Eva Paterson (Equal Justice Society), and Carl Pope (Sierra Club) -- addressed the growing influence of corporations within the American judicial system, particularly in the Supreme Court.

Watch now:
Watch live streaming video from fstv3 at

Judicial Vacancy Crisis Covered on MSNBC

AFJ President Nan Aron appeared on the Rachel Maddow Show last night to talk about the country's judicial vacancy crisis. Watch as Nan and Rachel put the problem into context and explain what it's really all about:

Visit for breaking news, world news, and news about the economy

Supreme Court’s Sharply Divided Wal-Mart Decision Limits Women’s Power to Fight Discrimination

Today the Supreme Court handed down its decision in Wal-Mart v. Dukes. At stake was the ability of a large group of women to join together in fighting sex discrimination in the workplace.

The Court decided 9-0 in favor of Wal-Mart that the class could not make its claim for back-pay under the particular Federal Rule of Civil Procedure used by the trial court. However, the Court split 5-4 in favor of Wal-Mart in holding that the class did not meet the basic requirement of “commonality” to form a class at all.

Betty Dukes, a greeter at a northern California Wal-Mart, alleged gender discrimination in a lawsuit filed in 2001. Dukes and other named women plaintiffs sought to certify a class action consisting of female employees who worked for Wal-Mart after December 26, 1998. Their allegations were that Wal-Mart’s employment policies and business culture have resulted in severe discrimination against women for many years.

The question before the Supreme Court was whether class certification was proper, which turned in large part on perceptions of who is to blame for the wide disparity in pay and promotion levels between men and women working for Wal-Mart. Wal-Mart argued that there is no common bond between thousands of pay and promotion decisions made by its managers across the country. Plaintiffs countered that Wal-Mart’s system of granting vast pay and promotion discretion to its upper-level managers, nearly all of whom are men trained by Wal-Mart to embrace and promote the company’s practices, yielded discriminatory results that pervade every region and nearly every store within Wal-Mart’s vast retail empire.

Although the Court unanimously decided the class action vehicle chosen by the plaintiffs (Rule 23(b)(2)) was improper – because plaintiffs sought monetary compensation under a rule designed for injunctive relief – the Court divided 5-4 over the fundamental issue of whether the women of Wal-Mart had enough in common to qualify for a class action under a different section of the rules (Rule 23(b)(3)). Over the forceful objection of four justices, led by Justice Ruth Bader Ginsburg, the Court’s conservative majority made it much more difficult for large businesses to be held accountable for their actions, this time by significantly raising the bar for forming a class, which is the only effective way to fight against widespread injustices committed by large, deep-pocketed corporate interests.

“The plaintiffs’ evidence, including class members’ tales of their own experiences, suggests that gender bias suffused Wal-Mart’s company culture,” wrote Justice Ginsburg in dissent. “Women fill 70 percent of the hourly jobs in the retailer’s stores, but make up only ’33 percent of management employees.’ [W]omen working in the company’s stores ‘are paid less than men in every region’ and ‘the salary gap widens over time even for men and women hired into the same jobs at the same time,” she added. Justice Antonin Scalia and the others in the majority managed to ignore this voluminous anecdotal and statistical evidence in finding for Wal-Mart. Our separate Wal-Mart report details much of this evidence.

The new threshold established by the Court’s five conservative justices imported Rule 23(b)(3)’s requirement that common issues “predominate” into the initial determination whether any class-action can proceed. This will have the perverse effect of inhibiting other class actions that rightfully could proceed under Rules 23(b)(1) or (2), where such a requirement previously did not exist. The longstanding rule had been that a common question of law or fact was easily met. No longer. The five conservative justices reinterpreted the rules to require class members to provide “substantial proof” that, in a Title VII claim, a particular policy existed that led to the alleged discrimination. The Court then evaluated the quality of the evidence of discrimination presented by Dukes and rejected the expert analysis of Wal-Mart’s “strong corporate culture” as inconclusive as to cause, the company-wide statistics as irrelevant to regional and store-based decisions, and the numerous anecdotes from all 50 states as insufficient given the size of the whole company. In practice, it seems that Wal-Mart is now too big to discriminate.

Justice Ginsburg countered that, under the well-established rule that corporate practices producing discriminatory results can violate Title VII, Dukes easily met the burden of showing common questions among all female employees of Wal-Mart. “The practice of delegating to supervisors large discretion to make personnel decisions, uncontrolled by formal standards, has long been known to have the potential to produce disparate effects,” she wrote. “The risk of discrimination is heightened when those managers are predominantly of one sex, and are steeped in a corporate culture that perpetuates gender stereotypes.” The practices and culture, as the district court found, were sufficiently similar for the women of Wal-Mart to pursue justice together.

The Court’s sharply divided decision will make it much more difficult for victims of employment discrimination to fight back. By trying the case as a national class, the women of Wal-Mart would have had better access to evidence of pay disparities, would have been better shielded from retaliation, and would have had better access to legal representation in matters that may only involve a little more than a thousand dollars per person. Employers large and small, who, as Justice Ginsburg illustrated, should be discouraged from using wholly subjective pay and promotion regimes, have been given a great incentive to adopt a near-Wild West approach to human resources.

Fortunately, Congress has the power to overrule the Court’s pro-corporate activism. The Federal Rules are written with authority granted legislation, and new legislation can change the Rules and their interpretation. Congress has acted before when the Supreme Court has hindered enforcement of civil rights laws, such as the Civil Rights Act of 1991, part of which overturned Wards Cove Packing Co. v. Atonio, and the Lily Ledbetter Fair Pay Act of 2009, which overturned Ledbetter v. Goodyear Tire & Rubber Co.

Supreme Court Prevents Emissions Suits Under Federal Common Law But Not Clean Air Act

Today the Supreme Court handed down its decision on American Electric Power Co., Inc. v. Connecticut. At stake was the right of states and individuals to stop corporate polluters from emitting harmful greenhouse gases.

The Court decided 8-0 in favor of AEP, with Justice Sotomayor recusing herself from the case.

This case was brought by eight states, plus the City of New York and three private land trusts against the nation’s five largest carbon dioxide polluters under the federal common law of nuisance, seeking to force them to cap and reduce their greenhouse gas emissions. The Second Circuit denied AEP's motion to dismiss, allowing the case to move forward.

Justice Ginsburg delivered the opinion of the Court, which held that the plaintiffs could not proceed under federal common law because the Clean Air Act delegates the federal role in managing greenhouse gas emissions to the Environmental Protection Agency (EPA). There is no room for parallel action under federal common law. Another reason to defer to agency action, the Court held, is that the agency is better equipped than federal judges to decide how strictly to regulate emissions.

Despite their ruling, the Court noted that plaintiffs may not be without recourse. “If States (or EPA) fail to enforce emissions limits against regulated sources, the Act permits ‘any person’ to bring a civil enforcement action in federal court.” Further, “[i]f the plaintiffs in this case are dissatisfied with the outcome of EPA’s forthcoming rulemaking, their recourse under federal law is to seek Court of Appeals review, and, ultimately, to petition for certiorari in this Court.”

The plaintiffs also brought suit under state nuisance law but the lower courts did not analyze whether or not the Clean Air Act would preempt state nuisance law. It is an easier threshold to displace federal common law when a federal agency has been delegated responsibility over the general area at issue. The Court remanded for consideration of this issue.

This case was filed before the Supreme Court decided 5-4 in Massachusetts v. EPA that EPA was obligated under the Clean Air Act to regulate greenhouse gasses. It is a setback for states using the option of federal common law, but it says nothing about the ability of states to use their own public nuisance laws to curb environmental harms.

AFJ's report on the case, Billionaires Behind the Curtain, focuses on the role played by the activist billionaire Koch brothers in financing groups who weighed in on behalf of American Electric Power and the other polluter defendants.

Corporate Court Devises New Hurdles For Formation Of Classes

For Immediate Release


Washington, D.C., June 20, 2011—Alliance for Justice President Nan Aron issued the following statement on today’s decision by the United States Supreme Court in Wal-Mart v. Dukes:
The decision today by a narrow majority of the United States Supreme Court to prevent the female employees of Wal-Mart Stores from banding together to form a class action to fight gender discrimination is just the latest example of the conservative majority’s unrelenting effort to prevent everyday Americans from using the courts to find justice and battle corporate abuses.

Although a narrow portion of Wal-Mart v. Dukes was decided unanimously, the fundamental issue about whether the women of Wal-Mart had enough in common to fight together for justice was not. Over the forceful objection of four Justices, a sharply divided Court has once again made it much more difficult for large businesses to be held accountable for their actions by significantly raising the bar for forming a class. In this case, the Corporate Court has made up new ways to prevent unified action by victims of widespread discrimination by inventing new legal hurdles for the formation of classes and erecting a shield for corporate misbehavior by giving undue weight to the fig leaf of written discrimination policies and ignoring real-world behavior.

This is another in a long series of cases where the conservative majority has used a radical reformulation of the law to erect a wall of privilege and protection around big business and has undermined long-held legal traditions of balance and fairness.

In spite of the willingness of the conservative majority to ignore clear and overwhelming evidence to the contrary, gender discrimination still exists at Wal-Mart and in other corporations. The fight for remedies will go on in the courts and in Congress, not only for Betty Dukes and the other plaintiffs in this case, but for those who believe the law is meant for all Americans and should not be distorted into legal armor for the powerful.
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Background information about Wal-Mart v. Dukes can be found on the Alliance for Justice website.

Senate Judiciary Committee Reports Out 3 Nominees, Holds Over 1 Nominee, and Schedules Hearings for 5 Nominees

The Senate Judiciary Committee Held a two-part Executive Business Meeting today, with a previously unannounced closed-door meeting sandwiched in between. At the originally scheduled business meeting this morning, the Committee unanimously reported out two nominees en banc: Marina Garcia Marmolejo, nominee to the Southern District of Texas, and Wilma Antoinette Lewis, nominee to the District of the Virgin Islands. After reporting out these nominees, the committee abruptly suspended the business meeting, went into closed-door session, and issued a notice that the business meeting would reconvene this afternoon. When the committee reconvened its business meeting, it reported out the nomination of Michael C. Green, nominee to the Western District of New York on a voice vote, with only Sen. Lee (R-UT) objecting, and it held over a vote on the nomination of Steve Six to Tenth Circuit Court of Appeals until its next meeting on June 23rd.

Apart from today’s business meeting and closed-door session, the committee also scheduled a hearing next week for five nominees: Christopher Droney to the Second Circuit Court of Appeals; Robert D. Mariani to the Middle District of Pennsylvania; Cathy Bissoon and Mark R. Hornak to the Western District of Pennsylvania; and Robert N. Scola, Jr. to the Southern District of Florida. Sen. Blumenthal (D-CT) will preside at the hearing.

For the most up-to-date and comprehensive information on judicial nominations, visit the Alliance for Justice’s Judicial Selection Project webpage.