Today, Alliance for Justice is hosting Our Rights, Our Courts, Our Future. The symposium features three panels, the first taking on consumer protections and the upcoming Wyeth v. Levine, one of the most anticipated cases of the Supreme Court’s upcoming term. Diana Levine will be on the panel to tell her story. The second addresses the question of executive power, featuring comments by Rep. Keith Ellison (D-MN). Finally, AFJ gets to its bread and butter: judicial selection. Former New York Times reporter Linda Greenhouse will anchor the discussion of the Bush administration’s courtpacking and where we can go from here. We’re sorry you can’t join us in person, but we’ll be liveblogging the entire event.
Panel 1: Access Denied? Our Courts and Consumer Protections
Moderator: Jeffrey Rosen, George Washington University Law School
Panelists: Diana Levine, Musician and Supreme Court litigant; Guy Molyneux, Hart Research and Daniel Goldberg, counsel to Senator Tom Harkin (D-IA)
After some technical difficulties (the tale of a mythical wireless connection), we are ready to roll.
The day opened with comments from Alliance for Justice President Nan Aron. She notes the drumbeat we keep up here—though there are many important issues that face the nation this year, we still need to have a national conversation about the importance of the federal courts and the law because of the impact on so many issues that we care about—the environment, the executive’s war powers, consumer protections and the list goes on.
And now we’re about to hear from moderator Jeffrey Rosen. He oberservs how fundamental accountability is to ensuring consumer protections and notes that Wyeth v. Levine is one of the most important cases of this term. More after the jump.
9:13 Prof. Rosen has completed his introduction of the panelists and now Diana Levine, the plaintiff seeking to prevent Wyeth Pharmaceuticals from depriving her of her day in court, is speaking. She is describing how the loss of her arm from Wyeth's anti-nausea drug Phenergan was catastrophic for her life and her career as a musician.
9:17 Ms. Levine has just begun to sing a song about how one of her wings was clipped, a song she wrote to begin the healing process for the loss of her hand.
9:19 Applause for Ms. Levine's song, and now she has begun to describe the expenses and financial burdens she suffered as a result of the complications from Phenergan.
9:20 She is now describing the week-long trial in a Vermont state court that resulted in a jury verdict in her favor, and the affirmance of that verdict by the Vermont Supreme Court.
9:21 She describes her case, now in the US Sup Ct, as not Wyeth v. Levine, but really Wyeth vs. We the People.
9:22 She wants to reassure children she works with that what happened to her could never happen to the them, but cannot.
9:23 She is quoting her father -- who helped put President Bush in the White House -- "We hld these truths to be self-evident: No one has the right to sacrifice Diana's hand to test the proposal that decisions made in Washington can relieve drug companies of the responsiblity they have for the products they put on the market."
9:25 As he introduces Daniel Goldberg, Prof. Rosen describes Diana's presentation as setting the gold standard for conveying the real world consequences of the law.
9:27 Mr. Goldberg, who works for Senator Tom Harkin (D-IA) has begun to speak, and apologizes that the Senator himself could not attend.
9:28 Goldberg: "the dry, technical cases" on statutory issues like preemption, private rights of action, and standing, often have the biggest impact on people's lives
9:29 He is now talking about the Lilly Ledbetter pay discrimination case, the Exxon oil spill case, and a case about securities fraud, all of which the Sup Ct decided against consumers in the past couple of years.
9:31 Goldberg is now addressing preemption, and the Bush administration's position that many federal statutes prevent states from giving greater protection for consumers. This position has been implemented in regulations involving areas like mattress flammability and railroad safety.
9:33 Goldberg is now describing the medical devices case from the Supreme Court, Riegel v. Medtronic.
9:34 Mr. Riegel had been injured by a defective heart catheter, but could not obtain any damages because of preemption.
9:35 Senator Harkin, joined by other Seantors, filed an amicus brief in the Sup Ct opposing preempton in Ms. Levine's case.
9:36 Goldberg is talking about how pro-business the Sup Ct is, but reminds us that with respect to statutes, Congress, not the court, has the final word.
9:37 Just this month, Congress did just that by correcting a misinterpretation of the Americans with Disabilities Act.
9:38 Mr. Goldberg is concluding by saying: "ultimately, elections matter," and that if we don't like the policies, we must choose better political leaders.
9:39 He has concluded and thanked Ms. Levine for her pursuit of justice.
9:40 Guy Molyneux, public opinion researcher, has now begun to speak about research his firm has done on preemption. They have done both focus groups and a national survey on the issue. By 64% to 31%, voters reject preemption of lawsuits from federally-approved products. The percentage increases if the injury from the product is described as serious. Opposition is throughout all regions of the country, both men and women, and all age groups, as well as all political leanings -- a somewhat smaller percentage, but still a majority, of Republicans, oppose lawsuit preemption as well.
9:45 Americans oppose preemption because they know they are at risk of being harmed by products. They believe that manufacturers "often cut corners" when it comes to safety to maximize the bottom line profit. Above all other products, Americans believe that prescription drug lawsuits should not be preempted.
9:47 Most voters have a positive view of product liability lawsuits, and 2/3 understand the limits of federal safety regulations. 86% believe that meeting federal safety standards still might mean risky products.
9:49 Americans believe that preemption of lawsuits will result in less corporate accountability.
9:50 Mr. Molyneux has finished his presentation, and Prof. Rosen is asking the panelists questions. He says to Ms. Levine that she may well lose her case, even by a large majority on the Court, and if so, asks what her message to the American people would be.
9:51 Ms. Levine says that if she does lose, it will be a blatantly pro-business decision, and the motivation to serve business interests will be exposed because the arguments in favor of preemption is so weak. She says "Justice is on our side... They took away my instruments, but they didn't take away my voice."
9:55 Prof. Rosen asks Mr. Molyneux whether we need a Democratic president to lead a broad legislative campaign to stop preemption of product liability cases. Molyneux thinks that a broad solution would require a broad coalition to bring pressure on political leaders, as well as strong leadership.
9:59 Prof. Rosen invites questions from the audience. Mr. Goldberg answers a question about cases involving fraud against the FDA by a drug manufacturer, and notes that the Sup Ct divided 4-4 about whether such a case was preempted by federal law.
10:03 Nan Aron, President of AFJ, asks how hard the US Chamber of Commerce lobbying against legislation that would restore the ability of people to sue over faulty medical devices. Mr. Goldberg says they are lobbying hard, but believes that compelling stories like Ms. Levine's can overcome the Chamber's efforts. He believes that we can get the Chamber to begin playing defense if we work together.
10:05 Prof. Rosen points out that it is an uphill battle to get a president of either party to appoint a populist who opposes corporate interests on the Supreme Court. Ms. Levine describes how she, her family and her community is doing all the work -- insult added to injury -- to try to compensate for Wyeth's failure to warn her of all the risks of the drug they manufacture.
10:08 Question from the audience: how can we talk about the issue of preemption in terms that are less technical? Is the issue one of popular sovereignty? How do we speak in broader democratic terms? Mr. Molyneux says that the easiest shorthand way to talk about the issue is "complete blank check" or "get out of jail free card" for corporations, that this is about complete or absolute immunity from lawsuits. He also suggests talking about complete lack of accountability for corporations.
10:12 Audience member asks whether panelists have noticed connections between preemption and other efforts to insulate executive action from review. Ms. Levine comments that it is ironic that the FDA is helping immunize a corporation from harm that a drug causes when the FDA is there to protect us from the dangers of drugs.
10:15 The panel concludes.