So, given may past criticisms of this board for its occasional lack of legal understanding, I saw a part of Kacsmaryk’s ruling that is a good springboard for a little legal education, mixed in with some criticism of The Kaz and his terrible opinion.
One of the big parts of this case is that the Plaintiffs are bringing the case 23 years after FDA approval but there is a federal statute of limitations of only 6 years. Statutes of limitation are a “third rail” in law, a “threshold issue” that kills a claim dead, Jim, if you don’t meet the time limit. So how in hell is The Kaz allowing a claim that is 17 years too late?
Well, this is what The Kaz said:
“Simply put, FDA stonewalled judicial review — until now,” Kacsmaryk wrote in his ruling. “Before Plaintiffs filed this case, FDA ignored their petitions for over sixteen years, even though the law requires an agency response within ‘180 days of receipt of the petition.’ … Had FDA responded to Plaintiffs’ petitions within the 360 total days allotted, this case would have been in federal court decades earlier. Instead, FDA postponed and procrastinated for nearly 6,000 days.”
What caught my eye when I read that is what The Kaz is doing here is called “equitable tolling” or “estoppel”. I hear you folks saying “equitable what?” “e-what-el?”
So let’s go back to the foundations of the Anglo American legal system, back to the days of the Anglo-Saxon and Plantagenet monarchs of England. The legal system was slowly formalized over centuries from the tribal and feudal practices of the Anglo Saxon conquest, mixed in with the development of organized Christian structures in England. So, two mostly separate but semi-parallel legal systems developed. There was the “court of law” which was authorized by the legal authority of the monarch (and later by Parliament) and the “court of equity” which was alleged to have power from God by the Church. For centuries there was massive tension between these two systems. For example, the whole Henry Plantagenet “Is there no one who will rid me of this turbulent priest?” business was in large part related to issues of the jurisdiction of courts of law vs. courts of equity.
The courts of law were in theory supposed to follow the law, including common law as written in prior opinions, and statutory law as decreed by the monarch (and later Parliament). The courts of equity were supposed to follow both church law but also to take into account Christian values like fairness, justice, and that sort of thing (in theory). So many of the more “squishy” legal doctrines in our system like “unclean hands” and “estoppel” (if you screw the other side you cannot receive an advantage from that) come from the old church court system.
This divide was eventually resolved by Parliament folding the church courts into the courts of law and now most Anglo-American courts are considered “courts of law and equity”. An example of equity being used in the US recently was Judge Cannon’s shitty opinion on the Trump search - she didn’t rely on any written law for that but imposed an “equitable remedy”. But the Appeals Court slapped the crap out of her and said she abused her discretion.
Equity is one of those deals where bad faith judges can use it to do all kinds of mischief, but there are also centuries of principles on how to apply it and good faith judges can rein it in. There’s a whole discussion to be had about the value of the squishiness of equity (kind of like the argument about pardons) but I’ll leave that aside for now.
So, in terms of The Kaz, that’s what he’s doing on that major point. I have MANY criticisms of his opinion but I have to get back to my Spellforce game so I’ll just say that on this point he is going to lose badly in the long term for two reasons:
1)Equitable remedies have to based on facts and The Kaz’s “facts” are based on the Plaintiff’s pleadings with minimal fact finding and are also just flat fucking wrong. (The drugs are safe, they tested safe 23 years ago and have a safe track record of 23 years. The allegation that the FDA ignored unsafe results is just pure BS. Fuck you Kaz.)
2)He also badly exceeded his discretion, just as Cannon did, in many ways, including making the injunction nationwide, tolling the statute for such a long time, not requiring the plaintiffs to show continuous due diligence and a litany of other issues.
That’s just on this statute of limitations issue. Also, one reason this opinion will not survive appeal is that this precedent on statutes of limitations would be REALLY BAD for corporations; it would allow suits to be brought decades late in many circumstances. SCOTUS isn’t going to allow that IMO.
His opinion on wrong on many other issues, both legal and factual, including standing, remedies, and most importantly on the core substantive fact that the drugs are safe. AND, he throws in a whole “fetal personhood” thing which is probably his real intent in the big picture. That clearly violates even the mega-conservative opinion of Dobbs which said that issue was not for the courts to decide.
Anyhow, a little legal history and education for you folks.
