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Flaws in the Preemption Defense to Liability Claims Against Generic Drug Manufacturers
Full text linkMore than a dozen years have passed since the U.S. Supreme Court decided that federal preemption protects manufacturers of generic (but not brand-name) drugs from most types of products liability claims. This seemingly arbitrary distinction sprang from a peculiarity in the regulations of the U.S. Food and Drug Administration (FDA). That agency soon thereafter proposed to modify its rules in order to eliminate this asymmetry in how the implied preemption defense worked to bar inadequate warning claims, but its effort ultimately failed, while lower courts have confronted some creative efforts to circumvent the special protection enjoyed by generic drug manufacturers. In their rush to criticize the Court for its uneven application of the Supremacy Clause in these cases, commentators have failed to notice that the whole edifice sprang from basic misconceptions about the operation and interplay of tort doctrine and FDA rules. A proper appreciation of these details reveals just how flimsy a case exists for continuing to recognize this particular version of the federal preemption defense to strict products liability claims
The Form Knows Best
Full text linkLaw students learn that contracts are carefully negotiated, precisely drafted, and shaped by doctrine. But lawyers tell a different story. This article compares six pillars of contract law with what we heard in over 170 interviews with senior transactional lawyers across M&A, sovereign bonds, and leveraged loans. The result is a gap between the Official Story taught in classrooms and the Unofficial Story told by practitioners—where boilerplate dominates, case law is rarely consulted, and market custom often prevails over efficient design. We suggest that many contract provisions are better understood as historical artifacts: products of inherited forms and production pressure. Or, as one lawyer put it, more Mars Bar than masterpiece. That gap may matter, especially when courts often interpret form as if it reflects intent
What’s in a Name? How the Eleventh Circuit Ignored the Fourth Amendment to Hold That a Warrant for One Person Authorizes the Detention of Others
Full text linkOdds are, your name isn’t all that unique. Most people share the same first and last name with hundreds, if not thousands, of other Americans. The frequency with which people share a name raises an important question of civil rights: What happens when officers arrest and detain an innocent person based on an arrest warrant that was issued for someone else with the same name?
In the Eleventh Circuit, the answer is almost always “nothing.” So long as a mistaken detention lasts three days or fewer, officers are free from accountability for apprehending the innocent—even if those officers have good reason to know that they’ve locked the wrong person behind bars. In short, if the names match and the detention is shorter than a holiday weekend, government officials are automatically in the clear—no matter how egregious their mistake.
This circuit-specific doctrine was born from a 2023 en banc decision called Sosa v. Martin County, which assessed a mistaken-identity detention under only the substantive-due-process component of the Fourteenth Amendment. And given the modern judiciary’s reluctance to meaningfully protect substantive rights through the Due Process Clause, Sosa left the innocent victim powerless to recover against the officers whose mistake landed him in jail solely because he shares a name with someone wanted for a crime.
But as Judge Robin S. Rosenbaum suggested in her Sosa dissent, the Eleventh Circuit has housed its mistaken-identity-detention precedent in the wrong constitutional provision. The right to be free from arbitrary arrest and detention is enumerated in the Fourth Amendment, which expressly safeguards “the right of the people to be secure in their persons . . . against unreasonable . . . seizures.” When mistaken-identity detentions are analyzed under the Fourth Amendment’s reasonableness framework, it becomes clear that the Constitution does not countenance the Eleventh Circuit’s three-days-in-jail exception to a person’s freedom
BigLaw\u27s Race Problem
Full text linkEver since the 1970s when BigLaw firms began to hire Black lawyers into their associate ranks, these firms have wrestled with problems in both recruiting and retaining Black associates. During the ensuing decades, BigLaw firms have minimally increased the low numbers of Black attorneys who have become partners, particularly equity partners, within their organizations. Numerous scholars have explored how racial bias and discrimination, both within BigLaw firms and greater society, have contributed to such failures in the recruitment, retention, and promotion of Black lawyers. In his new book The Black Ceiling: How Race Still Matters in the Elite Workplace, Professor Kevin Woodson, a Black law professor and sociologist who once worked as an associate at a large, elite law firm, offers his own theory about how racial discomfort, and specifically social alienation and stigma anxiety related to race, have functioned together to create and maintain racial disparities in BigLaw attrition and partnership. This Book Review examines Woodson\u27s insights against the backdrop of recent high-profile employment discrimination litigation embroiling BigLaw firms across the country, focusing on one recent case, Cardwell v. Davis Polk Wardwell LLP, in which the plaintiff a Black former associate, alleged he had been fired in retaliation for raising concerns about racial discrimination at his law firm. The Book Review extends Woodson\u27s research by identifying and assessing innovative firm- and industry-wide policies that can mitigate the impact of racial discomfort on Black associates \u27 prospects for thriving in and attaining partnership at BigLaw firms
Environmental Geography and Law: Toward a Synthesis
No full textThis Article introduces the new interdisciplinary field of Environmental Geography and Law, which has deep roots in ecology, social science, and law. Environmental and natural resources laws are situated in specific times and places where the climate, ecosystems, history and political economy influence both the land and the law. These places drive and constrain the way law develops. In turn, the law shapes places, from the dispossession and forced migration of indigenous groups, to land development via railroad land grants, to patterns of resource extraction and infrastructure development. Past efforts to integrate law and geography have focused more on critical theory approaches and less on interactions between the human and physical environment, but Environmental Geography and Law takes a more grounded and prescriptive approach. Through three case studies on climate migration, energy grid transformation, and water equity and environmental issues in California\u27s Central Valley, we demonstrate the promise of the field to interdisciplinary scholarship and teaching. These three case studies share a mindfulness of vulnerability, fairness, and distribution of resources, and together illustrate that coordinated attention to environment, place, and law exposes old problems in a different light, illuminating potential new solutions
Finding Law When There is None: An Analysis of Litigation Concerning Non–Fungible Tokens (NFTs)
No full textThe development of new technologies tends to give rise to the same quandary: how can these technologies flourish while also protecting citizens from any collateral consequences? How much latitude and freedom should innovators be given in pursuing these technologies is often debated. Non–fungible tokens (NFTs) are one of several products that utilize blockchain technology. NFTs have been hailed by some as the future of commerce while others have derided NFTs as a scam–ridden fad. With virtually no legislation or regulations specifically designed to govern NFTs, a content analysis of litigation involving NFTs was conducted as an effort to help determine which laws are currently being used to regulate NFTs. After a search of LexisNexis, it was determined that 95 decisions, which were rendered in federal courts, discussed NFTs. Among the issues litigated were wire fraud, money laundering, intellectual property law, securities law, arbitration and NFTs as service of process. While it seems like the courts have been able to litigate these cases without blockchain or NFT specific legislation, there are issues of which different courts could interpret different ways, and it seems that enough time has passed for government authorities to begin regulating the blockchain space without endangering innovation
