Bad Medicine: Prescription Drugs, Preemption, and the Potential for a No-Fault Fix

Amalea Smirniotopoulos

Various pills (Photo credit: Wikipedia)

Abstract

For decades, federal regulation of pharmaceutical drugs and medical devices has worked hand in hand with state tort claims to protect the health and safety of the American public. Now, a new trend toward preemption endangers this scheme. In recent years, the Supreme Court has given increasing deference to agency assertions about their preemptive authority and has found preemption in an increasing number of cases. In the process, the Supreme Court has preempted claims for medical device injuries and left claims for pharmaceutical harms in a precarious position. The elimination of common law claims for drug and device harms will leave holes in the FDA’s regulatory scheme, endangering the health and safety of Americans. It will also prevent ordinary Americans from seeking compensation for their injuries—even those injuries caused by manufacturer malfeasance. This Article proposes that Congress create a no-fault compensation scheme for drugs and medical devices to close these gaps. Such a scheme could be both practical and politically possible, satisfying manufacturers, tort reformers, patients, and plaintiffs’ lawyers alike.

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A Study in Unaccountability: Judicial Elections and Dependent State Constitutional Interpretations

Kate Goodloe

2010 Oklahoma General Election Ballot (Photo Credit: K Latham via Flickr)

Abstract

For the past thirty years, advocates have asked state judges to interpret their state constitutions in ways that would provide expansive protections for criminal defendants, beyond the minimum guarantees required by the federal constitution. However, this New Federalism movement has largely ignored the forces that constrain state judges when they interpret their state constitutions, to the detriment of criminal justice reform advocates.

This article focuses on state constitutional search-and-seizure provisions to analyze five possible constraints on state judges: the presence or absence of an intermediate appellate court, the age of the state’s constitution, the political ideology of state voters, the method of enacting state constitutional amendments, and the method by which a state’s judges are retained. It asks if any of these factors make a court more likely to interpret its state’s search-and-seizure provision as either controlled by the federal constitution or independent of it. It finds only one factor—a state’s judicial retention method—is statistically significant. The more electorally-accountable judges are, the less likely they are to interpret their search and-seizure provision independently of the federal constitution.

This relationship is worrisome because judicial elections are supposed to give voters more control over the substance of state law by making judges sensitive to the voters’ opinions. However, this article shows that elected judges are more likely to tie their state constitutional standards to the federal constitution than are unelected judges. Electing judges, then, produces an unintended result: it makes a state court more likely to turn a state constitutional question, which should be decided by the state court, into a federal constitutional question to be decided by the United States Supreme Court.

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“Ain’t I a Parent?”: The Exclusion of Kinship Caregivers from the Debate Over Expansions of Parenthood

Sacha M. Coupet

Photo Credit: raybanbro66 via flickr (creative commons license)

Abstract

Kinship caregivers-a group disproportionately populated by persons of color, particularly black grandmothers -have historically assumed parental roles, often together with a legal parent. Yet even as kin have increasingly assumed substantial parental responsibilities over the past few decades, they continue to have limited opportunities to carry the title of legal parent. At the same time, in claims involving stepfamilies and same sex partners of parents, and cases involving assisted reproductive technology (ART), family courts have expanded their definition of parenthood to recognize the rights of other caregivers, including those whose parental claims extend beyond the so called “rule of two.” The common element that these groups share is a conjugal tie with the legal parent. The differential treatment of kinship caregivers demonstrates that the concept of parenthood remains inextricably intertwined with the concept of conjugality -whether through legal marriage, quasi-marriage, or the mere capacity to marry or engage in prescribed mating. By privileging conjugal ties, the current framing of the parenthood debate excludes nonconjugal actors, most notably relative or kinship caregivers, from consideration as legal co-parents and from the accompanying discourse around multiple parentage. This article explores parental claims both within and outside of the scope of conjugality. In doing so, it reveals that, while the discourse on expanded notions of parenthood remains marriage-centered, the underlying rationales for extending parental assignment within conjugal relationships apply with equal force to nonconjugal kinship caregiving. Ultimately, it aims to enlarge the space within the community of “legitimate” parents to include kinship caregivers.

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