The founders of this country established 3 branches.
When one branch goes awry the other 2 are empowered to grab them by the knap of the neck and give them a good shake.
Now I don’t know how someone could graduate from high school let alone several years of college and not know that.
Its amazing that college educated folks are paid high bucks because for their knowlege because lots of time they don’t use it.
That’s all nice, Campion, but from where I’m sitting (been watching these suits for several years), it seems that most have been “shot down” as you put it, only to be taken to a new jurisdiction to be tried again. And again. And again. And again.
Now I know that laws vary by state; does it take a ruling from the supreme court of every state that such lawsuits have no merit for them to go away? Does it take a ruling from each federal district and circuit court for these “nuisance” lawsuits to go away?
Note that I do NOT automatically equate any lawsuit against a firearms manufacturer as a “nuisance” suit, but I think we had a runaway activist bench more than ready to facilitate the anti-gun groups who found a legal loophole to pressure an industry they thought was “bad.” And Congress, as one of the three branches of government, acted responsibly in crafting this legislation.
Yes, it is narrow, and it does nothing to protect manufacturers and distributors who actually break the law (nor should it). But it does draw a “line” that firearms manufacturers are not responsible for the actions of third parties, which will cut out at least one of the more ridiculous aspects of the lawsuits.
It would take either (a) a federal law that “pre-empts” state laws on the topic or (b) a decision by each state’s highest court and each circuit court of appeals (or the U.S. Supreme Court). This legislation seems a more effective means to an end.
I’ll disagree with “a runaway activist bench” but grant you “certain judges in various (sometimes influential) jurisdictions.” I’ll also agree that Congress did its job: it passed legislation on which the courts can base their decisions; that’s what Congress is supposed to do.
I’m sensing a certain amount of pushback from ExTank and justwannano (although I’ll confess I didn’t understand justwannano’s post), and maybe that’s because I haven’t endorsed the position that the courts were too permissive in permitting these lawsuits to go on as long as they did. From a longer-term perspective, things worked as they ought to: the lawsuits eventually were dismissed, and Congress has now passed a law to prevent much of the abuse. Were gun manufacturers “unfairly” targeted for suit? Sure, some were, and it cost them millions and millions of dollars in legal fees alone (which they will never be able to recover, even when found not liable). But as others have pointed out, other industries also are unfairly targeted, and will continue to face meritless lawsuits (and incur significant defense costs). Should we consider tort reform generally, rather than attacking it piecemeal? I suppose that’s a pipe dream.
Personally, I don’t know whether this law will be effective. It will be interesting to see how the courts interpret it, and how the plaintiffs’ bar tries to work around it.
I’m not sure how much help this bill will be. Remember that under the Rooker-Feldman doctrine , lower federal courts don’t have jurisdiction to review state court decisions. The only avenue for review of the decisions is through a writ of certiorari in the Supreme Court. Any gun manufacturer that hopes to use this bill as a defense in an “activist” court system (whichis apparently one that permits frivolous cases to proceed) will have to try the case and lose (I’m neglecting the possibility of interlocutory review, of course, but that has its own complications), appeal the case unsucessfully throught the stat court’s appellate system, and then seek discretionary review by the Supreme Court.
Assuming they get there, the gun manufacturers will have to deal with this language from Erie:
So state tort reform legislation would be much more effective than federal legislation. And if the state decides that gun manufacturers ought to be liable on the theories described by the bill, why should Congress have the power to overrule them. Madison’s proposal to give Congress the power to negate state laws was rejected, after all. Compare, http://www.classbrain.com/artteenst/publish/article_34.shtml (Article 6 of Virginia Plan included negative on state laws) *with * http://www.house.gov/Constitution/Constitution.html (no negative on state laws included in constitution).
IMO, a better way to deal with frivolous lawsuits is to enforce the existing rules against them. Judges already have the power, as you noted early, to dismiss a case for failure to state a claim upon which relief may be granted. They also have the power to sanction an attorney for filing a frivolous lawsuit. They generally do neither. Maybe we should devote some time to figuring out why not?
quote
…things worked as they ought to: the lawsuits eventually were dismissed, and Congress has now passed a law to prevent much of the abuse. Were gun manufacturers “unfairly” targeted for suit? Sure, some were, and it cost them millions and millions of dollars in legal fees alone (which they will never be able to recover, even when found not liable). But as others have pointed out, other industries also are unfairly targeted, and will continue to face meritless lawsuits (and incur significant defense costs). Should we consider tort reform generally, rather than attacking it piecemeal? I suppose that’s a pipe dream.
So you did understand.
You understand that it was an agenda to "…cost them millions and millions of dollars in legal fees alone(which they will never be able to recover, even if found not liable) . What I don’t understand is your reluctance to admit its time to start putting an end to this practice.
Just because it may (or may not) be more useful if it were broader, to include more industries ,a dangerous precident IMO which is a isn’t a good reason to bash it.
This could be a start.
quote me
Just because it may (or may not) be more useful if it were broader, to include more industries ,a dangerous precident IMO which is a isn’t a good reason to bash it.
That should read
Just because it may (or may not) be more useful if it were broader, to include more industries ,which is a dangerous precident IMO isn’t a good reason to bash it.
But prior to this legislation, I don’t think that there was a constitutional question that would have enabled appeal to the SCOTUS. Instead, cases would fight their way through the state system, and would terminate there. Now:
But going back to a point earlier: if this bill is intended to pre-empt state law, then the real danger is (a) activist judges who will ignore the law and (b) more really bad preemption analyses. Here’s a quick definition of preemption:
I think that Section 3(a) of the bill could be either an express statement of preemption, or at worst, implied preemption. And if the new law is held to preempt state common law, you don’t need to reach Erie.
So explain to me why we need to go to Erie? As you will recall, Erie involved a railroad’s duty to a person walking next to the railroad tracks. The railroad argued that Pennsylvania law applied, and that pursuant to Pennsylvania common law, Tompkins’ claim was barred because he was a trespasser. Tompkins said that Pennsylvania had no statutory law on point and therefore federal “general law” ought to apply.
Let’s look at the holding of the Court, which was quoted in part above. The entire holding (not the snippet quoted above) is instructive:
So, again, why are we discussing Erie? One last thing, Gfactor – curse you for making me read Erie again!
Agreed, and the only thing I’ve come up with is a Conley v. Gibson rationale, that something smells in Denmark and judges are loathe to dismiss a case before discovery.
I agree. Which, IMO, is as it should be. But besides that, if the purpose of the bill is to insulate gun manufacturers from state courts that are activist, in the sense that they will not dismiss tort claims even though they are frivolous (which normally means not supported by existing law or a reasonable argument for modification thereof), the statute is really a terrible failure. As you have pointed out, the same courts that are currently ignoring state law can ignore federal law with impugnity. If the trial court allows the case to go forward, either the state appellate system will determine that the claim is really a valid one (and therefore not frivolous at all) or the state appellate system will reverse the trial court. Gun manufacturers will spend just as much money defending the case.
I don’t see the possibility that SCOTUS will grant cert and reverse to be a meaningful addition to the rights already in play, except in the most questionable way possible: by displacing state law on the topic and replacing the state’s judgments with federal substantive law and Congress’s judgment.
It just doesn’t solve the problem that it claims to be addressing.
Agreed. How does the bill solve either problem?
Isn’t it a clear case of conflict preemption? If a state says that plaintiff can’t file a case like that. A judge who wanted to comply with state law (assuming that state law permitted the claim to go forward) would not be able to comply with both federal and state law. If state law did not permit the claim, the state’s procedures for handling frivolous claims would frustrate the purposes of the bill unless they were identical. And if they were identical, and the state court system decided that they had been complied with, what then?
More to follow [but I have to review a couple of cases first].
So we’re up to five posts in a row that I can’t understand! 
It’s okay really. I’ll leave my understanding at that it is unclear how much this law really accomplishes, but it likely isn’t much.
Sorry! I realized after I posted that my post was a bit too much directed at Gfactor.
But if I understand where Gfactor is going, and I think there’s a 60% chance I do, his argument is two-fold:
I think we pretty much agree about point one (and I think that’s justwannano’s bone of contention), but probably not on the second. I don’t think that this law is particularly well-drafted, and I don’t think it’s going to have the effect it’s being sold as having.
Which raises an interesting point: if it fails, who will the NRA rally their constituents to blame? The judiciary, or as has been put recently, the activist bench. The pro-gun lobby’s argument will not be “sorry, blame Congress for writing a bad law,” but instead, “blame the judges who are pro-gun control. Even when there’s a law directly on point, they’ll weasel around it to push their activist agenda.”
Now in fairness, Congress has been known to write some sloppy, sloppy laws, while praying that the judiciary will be able to figure it out and make some good law. And the legislative history on this law is pretty extensive, so maybe the judiciary will be able to intuit Congress’s intent. But it wouldn’t surprise me if this is just another set-up to blame the judiciary.
I think Erie is quite instructive. In Erie, the court made clear that Congress lacked the power to dictate state common law by statute.
The Erie Court so ruled because it was reversing Swift v. Tyson, which relied on a construction (albeit a twisted one) of the Rules of Decision Act. The Court was very certain that Congress could not declare substantive rules of common law.
Gun liability cases are usually based on state common law, and it is difficult to come up with a reasonable construction of the act that does have it declaring substantive state law. Take a look at the definition of
The statute picks and chooses among state law claims that may or may not be brought. Of course, one could try to read it so that it does not declare substantive rights.
Two problems with this really. First, it doesn’t really make sense of the substance of the statute. And second, wouldn’t such a construction be a violation of due process? Under this construction, we admit that the plaintiff has a state law right (a property right) to sue, but under federal law, is being deprived of the right without due process. The plaintiff is not even allowed into court.
But
seems to contradict this interpretation.
More important, *Erie * underscores that state substantive law is unquestionably an area of traditional state concern. US. v Morrison (fact that matter regulated was a matter of traditional state concern was relevant in commerce clause analysis); And see, Gonzales v. Raich, (Noting that the statute involved in Morrison created a remedy that was enforceable in both state and federal courts, and generally depended on proof of the violation of a state law).
I agree that the strict holding of *Erie *(federal courts sitting in diversity jurisdiction may not create federal common law) does not control. But the *Erie * court’s words are instructive. More broadly, *Erie *embodies the principle that Congress should stay out of the state law business. Could Congress enact a law that:
That is a harder question. But this law does not create federal rights, it abolishes state law causes of action. That’s different, at least as I read the cases.
I was going to analyze National League of Cities, Garcia, and New York v. United States, but I will have to re-read them after I get rid of this headache.
I wish it were that easy. Certainly some judges might follow the statute. As I understand it, some states have not addressed the issue of manufacturer liability for third party crimes yet. A non-activist judge in one of those states no longer needs to research state law in order to know the legal result. Of course this assumes the bill is constitutional. Regardless, a judge who is willing to ignore clear state law has no greater incentive to obey federal law.
So it does something. But it doesn’t do what they say it does. It does both more and less.
Can we expect it to convert activist judges? I can’t see how it begins to accomplish that goal.
Erie doesn’t apply; the statute does not declare what state substantive law is, it preempts state law. If your argument were correct, any preemption argument would go like this:
This isn’t how it works, however. In broad terms, Erie requires us to consider whether a state rule is procedural or substantive before applying it in a federal court. That’s not applicable here.
Of course; the statute says that certain claims are barred.
But since we’re all rational people, we won’t go there. It isn’t procedural, it’s substantive because it eliminates a legal theory as a basis for a claim for relief.
That’s it: this is an exercise of Congress’s power, and whether Congress has overstepped its bounds is a constitutional issue, not an Erie issue.
No. That section simply states the rules of construction: first, that when a court interprets the statute, it should do so in such a fashion as to find that clauses (i) through (v) don’t conflict, so that the court doesn’t write out part of the statute when it figures out how poorly it’s written.
But I think it’s the second part that’s troubling you, but all that says is that this statute does not create a new cause of action (i.e., it grants no right to sue that was not already there before), and it does not create any new remedy (i.e., you’re stuck with the remedies you had before). This does not implicate Erie.
Bottom line: citing to Erie is intriguing, but doesn’t add to the analysis. The question is whether this statute oversteps Congress’s authority under the commerce clause.
My point is simply that the *Erie *court said that Congress lacked the authority to dictate state common law. I agree it was dicta. I’ve seen nothing to indicate that the court will abandon its dicta in Erie. Moreover, *Morrison *, *Lopez *, and even *Raich * can be easily harmonized with the *Erie *dicta. So yes, *Erie * doesn’t apply, but it’s language and its rationale are helpful in evaluating the scope of Congress’s police power and its relationship to state police power.
We agree on this.
Don’t tell the others, but I think it does.
Meet me at the rendezvous. We need to talk.
Not sure I agree with this. I have actual work to do right now, so I’ll let it incubate, and get back to you when I get a minute.
At the very least, it stops federal legislation-by-lawsuit, see Andrew Cuomo and Smith-Wesson.
It says what state law can’t be without creating any positive federal law–it declares what state law can’t be. It’s not part of any sort of over-arching regulatory scheme. It simply prohibits state (and federal) courts from deciding cases in the traditional way. Can you identify any other provision that does the same thing?
And I’m not sure why you are so focused on preemption. Obviously, to the extent the statute is constitutional and it displaces state law, it prevails.
If your argument were correct, any preemption argument would go like this:
Not so. Congress can certainly, as we saw in Raich, write federal laws that prohibit what state law permits. In Raich, for example, the federal law prohibitted (with minor exceptions) the possession of marijauna. State law said it was ok to possess it for medical reasons. The Court said that the federal law did not exceed Congress’s commerce power. The Court did not rule the state law inoperative–it just said that the feds could enforce the federal law despite a state law permitting the conduct.
This bill is broader than that. It says that states can’t hold gun manufacturers liable for third party crime–under state law. That is a horse of a different color. It is reminscent of (note I do not claim that these cases control here) cases like New York v. United States:
Here Congress is effectively ordering state courts to dismiss claims not based on any positive federal law, but on a prohibition against state laws.
Again, the cases are not directly on point, but the analogy is there. Where does Congress get the authority to order a state court to dismiss a case?
*Erie *is a constitutional issue.
I think we agree that Congress has exceeded its power here. The question is whether it did so in one way or many.