Judge yes, legislate/regulate, no.


Two recent decisions, one from the Supreme Court and the other from the First Circuit, are graphic examples of how, despite criticisms of "activist'" judges reaching the results they want whatever the law, more often in practice, judges recognize the limits of their role and do not attempt to re-write laws or re-do regulatory decisions, no matter how boneheaded they view the legislative and regulatory results.

The first example, from the Supreme Court, is one in the news from yesterday, so I will be brief.  In 2009, in Wyeth v. Levine [http://www.supremecourt.gov/opinions/08pdf/06-1249.pdf] the Court held that federal law did not preempt a state law suit against a drug manufacturer for inadequate warning labels.  Yesterday, in Pliva, Inc. v. Mensing [http://www.supremecourt.gov/opinions/10pdf/09-993.pdf], the Court held that federal law did preempt a suit against a manufacturer if the drug was generic and copies the same warning as the brand-name version.  So you can sue the brand-name manufacturer but not the generic manufacturer, with identical warnings.

Does this make any sense?  Nope.  Is it a judge's job to make sense of the law?  Nope.  Justice Thomas, writing for the majority said: 

    "We recognize that from the perspective of Mensing and Demahy, finding pre-emption here but not in Wyeth makes little sense. Had Mensing and Demahy taken Reglan, the brand-name drug prescribed by their doctors, Wyeth would control and their lawsuits would not be pre-empted. But, because pharmacists, acting in full accord with state law, substituted generic metoclopramide instead, federal law pre-empts these lawsuits. See, e.g., Minn. Stat. §151.21 (2010) (describing when pharmacists may substitute generic drugs); La. Rev. Stat. Ann. §37:1241(A)(17) (West 2007) (same). We acknowledge the unfortunate hand that federal drug regulation has dealt Mensing, Demahy, and others similarly situated.

    But 'it is not this Court’s task to decide whether the statutory scheme established by Congress is unusual or even bizarre.' Cuomo v. Clearing House Assn., L. L. C., 557 U. S. ___, ___ (2009)

(THOMAS, J., concurring in part and dissenting in part) (slip op., at 21) (internal quotation marks and brackets omitted)." (footnote omitted)

The second example of judges scratching their heads or holding their noses while they rule comes from the First Circuit.  L.S. Starrett Co. v. FERC [http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=10-1470P.01A].   I can't remember reading a decision recently in which a court (here Torruella, Stahl and Howard, with Judge Torruella writing the majority opinion) made it so abundantly clear that they were ruling the way they did because they had no choice.

Basically, FERC was making a hydrofacility owner get a license for increasing the actual capacity (still below installed capacity) on a hydrofacility that was built before 1935 so it had no license.  Because of the deferential standard that must be applied to regulatory decision-making, the court upheld the decision.  In doing so, however, the court also indicated how idiotic it thought FERC's decision was by:

1.  saying at n. 2 "Given the state of the law as herein expounded, we are required to affirm …. We do so without much enthusiam, however.  It may not be coincidental that Starrett, which was established in 1880 and is the principal employer in Athol, Massachusetts, is the last of its kind remaining within our borders.  Its attempt to keep its manufacturing costs down to allow it to remain competitive with foreign industry has unfortunately come to naught in the face of bureaucratic outreach….."

2.  repeating this point at n. 15 that it was affirming "regretfully because we are not blind to the economic realities of the situation.  Under the facts of this case, the FERC could have certainly exercised its administrative discretion."

and, most interesting of all, 

3.  adding a concurrence from Judge Stahl, joined by Torruella, that begins:

    "I join this opinion with great reluctance.  I do so because Chevron deference requires the result reached here, not that result makes economic or realistic sense.

      Here, we have the last full-line precision tool company producing its product within the United States.  Although Starrett has several manufacturing locations worldwide, the Athol location produces most of the precision tools and has remained the company's headquarters since its founding in 1880.  Starrett is the largest employer in the greater Athol area, and its payroll typically contributes over $2 million per month to the economy.

    In order to remain competitive in the global market place, Starrett has aggressively sought to lower its cost structures and has instituted many energy conservation measures, which have both saved operating costs and reduced the company's carbon footprint.  One of these measures included the replacement of the failed left turbine generator with a new, energy-efficient generator, the source of controversey in this case.

    Innovations like those taken by Starrett are a necessary concomitant if we are to reinvigorate the nation's manufacturing base.  Our decision today, however, may well mean that this company loses the economic advantage it would have from its low-cost, nonpolluting power structure.  Cost-saving measures like those instituted by Starret are particularly key for companies based in high enery cost states, like Massachusetts, and may well make the difference in kepping the plant open, providing good paying jobs, and maintaining an essential business such as this in our country.  Indeed, machine tools are the lifeblood of industry, and when we have lost all our domestic capacity, we become less secure and less able to compete.  It is said by some that American industry has died from a thousands cuts, and many contend that over-regulation bears a share of the responsibility…."

The concurrence goes on to find the precedent giving FERC power to reach purely local acitivity as "ironic," noting that "Starrett's Project is a prime example of efficient usage through a nonpolluting power source and is one that we should be encouraging, not stifling."

The concurrence then ends by proposing that Starrett might have argued that although Chevron applies, FERC's definition of post-1935 construction was "unreasonable in view of the realities presented by this project," but because Starrett didn't make this argument, "nor was there evidence of the costs it would incur in seeking the Commission's licensing and whether those costs the necessary delay would take away from the project's economic advantages," the Court had to "deal with the record [it] ha[d]."

Phew.  We know it costs a gazillion dollars to get a FERC license.  It takes forever, and everyone wants something – fish passages, etc. increasing the costs.  So this manufacturer, as the court basically notes, is toast.  It's clean energy, the manufacturer isn't increasing the installed capacity and the dam is on a non-navigable stream.  Well so what?  The regulator wants to regulate, the law says it can and so that's it.  No one every said the regulation had to make sense.

I've often said that I'm going to write a law review article entitled "Are Stupid Laws Illegal?"  The answer, of course, is no, absent falling afoul of a specific constitutional provision; we still live very much in a post-Lochner world.  The same holds true for administrative rulings.  As both these decisions reflect, judges only judge, even if they have to gnash their teeth while they do so.  (Although that last paragraph in Starret suggests that there might have been some slim hope had the manufacturer tried some innovative arguing with a supporting record, and Pliva was decided 5:4).

 The morale of the story?  Courts are avenues of limited relief.  They can only do so much.  The recent Wal-Mart v. Duke [http://www.supremecourt.gov/opinions/10pdf/10-277.pdf] and American Electric Power v. Connecticut [http://www.supremecourt.gov/opinions/10pdf/10-174.pdf] make this same point in different ways.  In AEP, the Court basically sidestepped becoming the forum for solving the climate change problem, leaving that to the regulators.  The Wal-Mart decision shows how an adjudicatory system built to address one-on-one disputes isn't equipped to solve some alleged problems on a massive, broad-based scale.

We have three branches of government.  Yes, they provide checks and balances for each other.  But one cannot and should not try to step in and take over for another.