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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Torturous Intent: Refoulement of Haitian Nationals and U.S. Obligations under the Convention Against Torture

Alyssa Bell & Julie Dona

Abstract

This paper argues that the Board of Immigration Appeals (BIA) erred when it strictly limited the scope of Convention Against Torture (CAT) protection for deportees facing inhumane treatment in Haitian jails. The authors examine In re J-E-, in which the BIA narrowed the definition of torture under CAT to acts undertaken by governmental officials with the purpose of causing the detainee to suffer, thereby excluding governmental acts undertaken simply with the knowledge that the detainee would suffer. In J-E-, the BIA assumed that Congressional language of “specific intent” compelled a requirement of purpose by the governmental actor. This paper provides a careful analysis of how the term “specific intent” has been used in criminal law and finds that, contrary to the BIA’s analysis, there is significant doctrinal support for interpreting CAT to require only a knowledge mens rea on the part of governmental actors. A knowledge requirement is also consistent with the language of CAT, the language of the Senate’s reservations to its signing, and the spirit and purpose of CAT. The authors argue that the BIA’s cursory analysis is not entitled to deference by the Circuit Courts, and they provide recommendations for legislators and practitioners.

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