No Legal Shield in Drug Labeling, Justices Rule
This decision seems sensible. It’s sort of hard for me to stomach deference to the FDA where forcing a Company to have a better warning by imposing liability might prevent someone from losing an arm in the future. If you’re going to argue against this, your argument better be good. Alito apparently said that “tragic facts make bad law” in his dissent. If I had just lost my arm I would have probably wanted to slap him around a bit with my good one.
Most people seem to agree that regulation is more efficient than litigation because lawsuit are wildly ineffective and juries are unpredictable. I always recognized Deepal as a weak-hearted economist, though, foresaking principle in the face of sentiment. Although I’m reminded of this conversation I had with Professor Catharine MacKinnon where she asked me what the question presented in the famous “Poor Joshua” case (DeShaney) where a kid gets brutally beaten and government child welfare services does nothing even though they know about it. I had Professor David Bernstein (of the Volokh Conspiracy) who said that the case was about government entitlements/rights and the rise of the administrative (nanny) state. Professor MacKinnon said, no, the case was about: “What can we do for Joshua?”
Thinking generally about regulation. I’ve heard a decent amount lately about Rush Limbaugh talking about how America should return to its free market roots. I’m reminded of Justice Holmes’s famous quip: “The Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics”—suggesting that free market principles have no root in the Constitution. As an immigrant’s kid, I don’t think it’s so much free market principles per se that lie at America’s core as a land of opportunity, it’s the notion of America as a meritocracy that draws people here. My guess is that regulation can both foster and be of detriment to social organization as a meritocracy. The problem lies in the fact that regulation occurs via centralized and not distributed power, and the person(s) with that centralized power are most likely to use it to create barriers to competition with themselves. In other words, you can only hope for a benevolent regulator because you can’t “regulate the regulator” (an homage to Watchmen) via our democracy because the way we vote is goofy and the way our government is structured does not foster that (administrative agencies as quasi-judicial and legislative entites whose executives that run the show are career people).
