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OpenMarket: Law and Constitution

  • English Plaintiffs' Long-Distance Suit Moved Closer to Home

    August 1, 2007
    Usually, it's the plaintiff who seeks to sue in his home state, while the defendant seeks to have lawsuits heard in its own home state. But New Jersey law is so biased against corporate defendants that New Jersey-based drug-maker Merck & Co. sought to keep English lawsuits against it out of the New Jersey courts and in English courts instead. By contrast, English plaintiffs sought to sue Merck not in their own country's courts, as plaintiffs typically do, but rather wanted to sue it all the way across the ocean in New Jersey, several thousand miles away from their own homes. A New Jersey appeals court has just ruled that the suits belong in England. The court's decision is correct and would be unremarkable in any other state, since the suits do, in...
  • Drug Price Ceilings Overturned

    August 1, 2007
    An appeals court ruling today struck down Washington, D.C.'s price ceilings for prescription drugs. In Biotechnology Industry Organization v. District of Columbia, the Court of Appeals for the Federal Circuit upheld a federal district court ruling that held that D.C.'s municipal price-control ordinance was preempted by federal patent laws. The D.C. Council had voted to ban "excessive prices," a vague term for which they provided no specific statutory definition. The Council did, however, include a provision declaring that a drug price is presumptively excessive when it is "30% higher than the comparable price" charged in Australia, Germany, the United Kingdom, or Canada. It also authorized lawsuits against pharmaceutical manufacturers by any organization claiming to act "in the public interest;" "any person" claiming...
  • Whole Foods Merger Analysis

    August 1, 2007
    I may be going out on a limb here, but I predict, on the basis of what happened in court yesterday, that the Whole Foods merger with Wild Oats Market will eventually be approved. Antitrust aficionados will know that the crux of this case is how the court will define the relevant market, and whether or not the merged firm would be a monopolist in that market. Is the market to be narrowly defined as including only nationwide, premium, organic and "natural" foods supermarkets (a definition that really includes only the merging firms), as the FTC supports? Or should it include all retailers of organic and "natural" foods (which includes almost every major supermarket chain and Wal-Mart), as Whole Foods insists? The way court go about defining the relevant market is a little too convoluted to explain in a blog post, but I'll refer readers the joint Justice Department/Federal Trade...
  • Lott Vindicated?

    July 31, 2007
    Some readers may remember the long-running defamation suit between John "Freedomnomics" Lott and Steven "Freakonomics" Levitt. Defamation suits are rarely settled in the plaintiff's favor, so this (subsrciption required) may be regarded as more than a small victory for Lott:
    John R. Lott Jr.'s defamation lawsuit against a fellow economist, Steven D. Levitt, has provisionally been settled -- but it may yet roar back to life. In documents filed on Friday in federal court, the two parties outlined a settlement that requires Mr. Levitt, who is a professor of economics at the University of Chicago and a co-author of the best-selling book Freakonomics: A Rogue Economist Explains the Hidden Side of Everything, to send a letter of clarification to John B. McCall, a retired economist in Texas. ... By some...
  • Reformist Attorneys General Target Abuses

    July 31, 2007
    In recent years, some state attorneys general have used their offices to sponsor lawsuits that redistribute billions of dollars from businesses into the pockets of their trial lawyer cronies. CEI describes this in greater detail in The Nation's Top Ten Worst State Attorneys General. Now this problem has been criticized by reform-minded attorneys general as well. This subject (and CEI's study of the worst state attorneys general) came up for repeated discussion in today's Federalist Society forum, "Reaching Too Far: The Role of State Attorneys General," which featured attorneys general Bob McDonnell of Virginia, John Suthers of Colorado, and J.B. Van Hollen of Wisconsin, as well as former attorney general Don Stenberg of Nebraska. Suthers described how trial lawyers and lobbyists descend like vultures at attorney...
  • State attorneys general in town today to criticize activist colleagues

    July 31, 2007
    The Federalist Society helpfully hosted a panel discussion today on the on-going abuse of power by state attorneys general - otherwise known as attorney general activism. You know, the same group elected officials who brought the tobacco settlement down on us. The $240 billion partnership between the states and Big Tobacco (which CEI is challenging in court). Not that it's the only bogus lawsuit brought on by state AGs and their trial lawyer buddies. Apparently cranberries can be an AG target. Wisconsin's current AG, J.B. Van Hollen, relayed the tale of how his predecessor suited a cranberry grower, alleging that the cranberry bogs were a "public nuissance" under Common Law. The ousted AG in question, Peg Lautenschlager, was on...
  • FDA Tobacco Regulation Bill Tramples Free Speech, Advertisers Say

    July 30, 2007
    Advertisers are objecting to the bill that would subject the tobacco industry to FDA regulation, saying that its restrictions on tobacco advertising would violate the Supreme Court's ruling striking down tobacco advertising restrictions in Lorillard Tobacco v. Reilly (2001). They also claim that it would set a bad precedent for advertising restrictions in other industries. There are many other objections to the bill, such as the fact that it would make it harder to sell smokeless tobacco to cigarette smokers, even though smokeless tobacco is less dangerous than...
  • FDA Regulation: Harmful to Smokers' Health?

    July 27, 2007
    Congress is on the verge of passing a bill that would subject tobacco products to FDA regulation. The FDA regulation bill would make it harder to market smokeless tobacco products to smokers, even though thousands of lives would be saved if smokers were to switch from cigarettes to reduced-risk tobacco products like smokeless tobacco. Cigarettes are much more dangerous, and more likely to cause cancer, than smokeless tobacco. The FDA regulation bill's potential adverse effect on health has drawn criticism from Senator Burr, an editorial in the Washington Times, and...
  • Brother, can you spare several hundred million bolivars?

    July 25, 2007
    The online version of Foreign Policy features a list of the word's five worst currencies: The Somali shilling, Iraqi dinar, North Korean won, Venezuelan bolivar, and Zimbabwean dollar. What their countries all have in common should be obvious: Lack of any semplance of rule of law. Somalia and Iraq have weak central governments that have proved unable to bring rampant murderous violence under control, while the other three are ruled by insane despots whose whim passes for law. Take the ridiculous measures Venezuela's Hugo Chavez has taken to stem the slide of his country's currency, which his own policies have helped bring about:
    Venezuela's currency has lost 21 percent of its value since January 2007, the worst performance of all 72 currencies tracked by Bloomberg News....
  • A Dopp of Smear

    July 25, 2007
    The Wall Street Journal weighs in today on expose of smear tactics used by Darren Dopp, a communications aide to former New York Attorney General -- now Governor -- Eliot Spitzer, against State Senate Majority Leader Joe Bruno (on which Hans commented yesterday). It didn't start with Bruno:
    On Monday, the office of Democratic Attorney General Andrew Cuomo released a 54-page report on Mr. Bruno's use of state helicopters, allegedly for personal political purposes. The investigation had been prompted by the Governor's office after Mr. Spitzer's communications aide and hatchet man, Darren Dopp, saw to it that allegations of impropriety against Mr. Bruno had found their way into the hands of...

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