Justinian Lane

Carter Wood at Point of Law misunderstands the legislative process

He just posted an article about bills to undo the Supreme Court decision in Reigel v. Medtronic and entitled the post "Preemption: the legislative undermining under way."

Preemption: The legislative undermining under way

The attacks against federal preemption, a recurring topic of discussion around here, are stepping up in Congress.

On June 26 Rep. Frank Pallone (D-NJ) and Rep. Henry Waxman (D-CA) introduced H.R.6381, the Medical Device Safety Act. Being sold as overturning the Supreme Court's decision in Riegel v. Medtronic, it simply amends the Federal Food, Drug and Cosmetic Act with a clause: "Nothing in this section shall be construed to modify or otherwise affect any action for damages or the liability of any person under the law of any State."

Source: | PointOfLaw Forum: Preemption: The legislative undermining under way

Congress cannot "undermine" the Supreme Court in our system of government; Congress makes the laws, and the Court merely interprets the laws.  If the Court ever interprets the laws in such a way Congress finds unacceptable, Congress may (and often does) pass a new law to correct the decision.  There's nothing wrong with this; it's how our system of government works. 

The "reform" crown often derides trial lawyers for purportedly trying to accomplish in the courts what they had been unable to accomplish in the legislature.  So why are they now critical of efforts to get a law passed in Congress?  Isn't that what they say we're "supposed to" do?  Or are we just supposed to lie down and let business interests dictate the legislative agenda in this country?

Justinian Lane: Author Bio | Other Posts
Posted at 11:18 AM, Jul 08, 2008 in Preemption
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Justinian, you totally hit the nail on the head. This fits under the category, "tort reform hypocrisy". According to this tort "reform" logic, creating law is the province of the legislature, unless that legislation corrects overly-corporatist caselaw. Sheesh. Thanks for this.

Posted by: Kia | July 8, 2008 1:44 PM

I think if the author here is implying that Congress shouldn't "undermine" the Supreme Court's interpretation of Congress's own laws, as a matter of general course, then you've definitely a good point.

That said, when s/he wrote the title "Preemption: The legislative undermining under way" s/he may have intended to only mean that the legislation was undermining *preemption*, which the bill obviously does. In this regard s/he may simply have been saying 'I would prefer preemption to remain intact'.

Posted by: Lawyer | July 8, 2008 2:51 PM

A better post title might be "Justinian misunderstands the English language." Nothing in the post says that the legislature is undermining the Supreme Court.

Posted by: Ted | July 8, 2008 8:35 PM

The legislative undermining of what, Ted? Of the Reigel Supreme Court decision.

Posted by: Justinian Lane | July 8, 2008 8:49 PM

Neither the title nor the post suggest what you suggest. "Legislative undermining" in the title may itself be ambiguous, but the import is made clear in the first sentence of the post: "attacks against federal preemption" -- i.e., Carter's talking about undermining preemption, not undermining the Supreme Court's statutory interpretation. Clearly, Congress adding explicit language to a statute to allow state tort lawsuits notwithstanding the FDA's heavy regylation of new medical devices is undermining federal preemption. Does Congress have the power to do so? Of course. Should they? Of course not.

Posted by: Jim Copland | July 15, 2008 5:27 PM

"Does Congress have the power to do so? Of course. Should they? Of course not."

Do you watch South Park by any chance? If you do, imagine the following in Kyle's mom's voice: "What, what, what?!" You don't think Congress should get to amend a statute it wrote?

Posted by: Justinian Lane | July 15, 2008 6:17 PM

Justinian clearly has no interest in honest discussion or debate of the issues, as he consistently insists on giving the most tendentious reading of any other comment to derail the discussion and avoid acknowledging that his original post was dishonest or addressing what Jim Copland actually said.

What's so hard to understand about the proposition "Congress should not adopt a statutory bar to preemption"? Justinian apparently does not believe he can refute this simple idea, so he instead resorts to making up a fictional rendition of Copland's claim.

Posted by: Ted | July 15, 2008 9:55 PM

The "dishonesty" schtick is getting tired, Ted. Jim's comment was ambiguously written and I took it to mean something other than what you did.

I refuted the idea of preemption numerous times, including the lengthy post about trasylol.

Jim and I (and you) may disagree about whether preemption is a good idea or not, but at least we all agree that Congress can legislate how it sees fit on the issue.

Posted by: Justinian Lane | July 16, 2008 12:35 AM

You made a claim about Carter Wood that wasn't true; you still haven't changed your post title, still haven't retracted it, and still haven't apologized for it -- though you have wasted time making pointless comments several times in response to multiple people pointing out you misunderstood Wood. That's dishonest.

You then tried to change the subject in response to Jim's comment calling you out by misrepresenting Jim's comment to try to make his argument look stupid. There was nothing "ambiguous" about his comment. That's also dishonest: you still haven't acknowledged your error, you still haven't apologized, instead you make a dishonest excuse of your deliberate attempt to derail the discussion.

You then tried to change the subject when I called you out on it.

In short, you're not interested in honest discussion. Don't bother contacting me in Michigan; I'm not wasting any time with you.

Posted by: Ted | July 16, 2008 8:35 AM

Oh for God's sake, Ted.

1: Carter's post was entitled "the legislative undermining underway" and was about Congress amending a statute. So I have nothing to retract or correct. Even "Lawyer" thought that I might have "a good point." If anyone needs to change/correct a post, it's Carter.

2: If you don't see that Jim's comment was ambiguous, perhaps you took too many economics classes and not enough English classes. Once you suggested he meant something other than what I thought, I made a comment reflecting that meaning. A polite, honest, on-topic comment.

3: I didn't change the subject. In response to your question, I pointed out a lengthy post I had written illustrating the problems with preemption. A post you've yet to refute, btw.

You're so touchy.

Posted by: Justinian Lane | July 16, 2008 2:23 PM

Even after Justinian's error has been pointed out to him, he continues to leave up the incorrect title unfairly attacking Wood. Hence the term "dishonest."

Even after Justinian's error about mischaracterizing Copland's statement is pointed out to him, he continues to change the subject instead of apologizing to Copland for falsely attempting to characterize what he said. Hence the term "dishonest."

Note that Justinian also dishonestly characterizes Lawyer's July 8 comment, which is foolish since everyone reading this comment thread can plainly see that Lawyer did not say what Justinian attributes to him. I hope you don't pull that in an actual courtroom.

Note also that Justinian is a hypocrite. In the comments to his post on Justice Neely, he argued that he was trying to claim that it was unethical of me to quote Neely without checking to see what Neely said. (This is was dishonest backpedaling from Lane's original false argument, when he incorrectly claimed I misquoted Neely. Justinian still hasn't apologized for that mischaracterization, which he could have avoided if he had actually read the book he was talking about--which he still hasn't.)

In one post and comment thread, Justinian has now mischaracterized the quotes of three people--Wood, Copland, and "Lawyer"--without checking to see if he was accurately characterizing them. According to Justinian's comments to his earlier post, this is unethical. If Justinian were remotely honest, he would acknowledge he is a hypocrite (for doing precisely what he claims to criticize others for) or apologize for his earlier bogus accusation of unethical conduct.

And, yes, I'm touchy when I'm dishonestly accused of being unethical by someone who hasn't even read the book I accurately quoted.

Posted by: Ted | July 16, 2008 4:47 PM

Ted, the attack on Carter is completely proper. Congress has the authority - the sole authority - to rewrite the FDCA in any way it sees fit. Rewriting either the FDCA or the medical device act is not undermining anything. It's how our system of government works. It was ignorant of him to use the word undermining in that context.

The characterization of Lawyer's comment is completely proper, too. Lawyer stated that if Carter meant what I believe he meant, then I have a good point. And thanks for the tip on courtroom etiquette, but I'll get my advice from practicing lawyers.

I did not mischaracterize Jim's comment. I *asked* him with some sense of shock if he meant meaning (a) of an ambiguous statement. I did not attribute that position to him - I merely asked him if that's what he meant. When you stated that he meant meaning (b), my reply was still not a mischaracterization of his statement. If he believes that Congress should not abolish FDA preemption, he's certainly entitled to that belief. I on the other hand believe that every one of the hundreds of thousands of Americans who died from drugs the FDA should never have approved (like trasylol) is a good reason not to support preemption.

All I have to say about Neely is here:

Posted by: Justinian Lane | July 16, 2008 5:15 PM

So either Justinian didn't really mean it when he said it was unethical to quote someone without double-checking whether you understood the meaning of their quote, or he's a hypocrite because he "unethically" quoted Wood without checking with Wood.

Lane's "unethical" behavior is far worse than the behavior he called "unethical", because my representation of Neely's quote was accurate, while Lane's representation of Wood's quote is inaccurate -- yet Lane refuses to correct his lie about Wood, and repeats the lie in his comment.

Note that his lengthy reply to me simply fails to address his hypocrisy.

Posted by: Ted | July 16, 2008 5:59 PM

"Rewriting either the FDCA or the medical device act is not undermining anything. It's how our system of government works. It was ignorant of him to use the word undermining in that context."

Justinian, I think this statement illustrates the heart of this thread's controversy.

You've attributed to the word "undermine" an aire of impropriety or wrongfulness. Literally, undermine simply means to remove-the-basis for a certain thing. Thus, when the poster stated that Congress was "undermining" preemption, it didn't mean that the poster believed that Congress was acting improperly or wrongfully. It just meant that they were doing-away with it.

Thus, it's haphazard to say that "[i]t was ignorant of him to use the word undermining in that context" when the word does not have meaning you think it does, nor did the poster seemingly use it in the manner you think he did.

Posted by: Lawyer | July 16, 2008 6:13 PM

To quote Justinian's post that he linked to: "my point was and is that it is dishonest to use an author’s quote in a manner he disapproves of without at least noting that disapproval."

So Justinian, by his own definition, is not only dishonest in using Wood's quote (and Copland's quote and Lawyer's quote), but he is a hypocrite to boot.

Posted by: Ted | July 16, 2008 6:19 PM

Here's the difference, Ted: If Carter ever says that he disagrees with my interpretation of his words, I'll note his disagreement instead of putting my hands over my ears and running with the quote.

Lawyer, the word indeed have the meaning I've attributed to it:


–verb (used with object), -mined, -min·ing.
1. to injure or destroy by insidious activity or imperceptible stages, sometimes tending toward a sudden dramatic effect.
2. to attack by indirect, secret, or underhand means; attempt to subvert by stealth.

3. to make an excavation under; dig or tunnel beneath, as a military stronghold.
4. to weaken or cause to collapse by removing underlying support, as by digging away or eroding the foundation.

From Merriam-Webster:

Main Entry: un·der·mine
Pronunciation: \ˌən-dər-ˈmīn\
Function: transitive verb
Date: 14th century
1 : to excavate the earth beneath : form a mine under : sap
2 : to wash away supporting material from under
3 : to subvert or weaken insidiously or secretly
4 : to weaken or ruin by degrees

So again, Carter was ignorant to use the word undermine in that context.

Rather than quibble about dictionary definitions, or go waaaay off topic (Ted), why not offer your thoughts on why the victims of Trasylol shouldn't be able to sue since the FDA made a huge mistake approving the drug in the first place?

Posted by: Justinian Lane | July 16, 2008 6:26 PM

Because Bayer didn't do anything wrong.

When are you going to apologize to Carter Wood for lying about him?

When are you going to apologize to me for calling me "unethical" for something you do every single time you write a post?

Posted by: Ted | July 16, 2008 7:51 PM

"Because Bayer didn't do anything wrong." Great rebuttal to my post about Trasylol, Ted. Very well-researched and fact-intensive. All it's missing is "so there" to be one of the greatest rebuttals of all time. I bow to you, sir. I am vanquished.

Of course, Bayer itself disagrees with you and disciplined employees for wrongly withholding data from the FDA.

What do I have to apologize to Carter for? I said he misunderstands the legislative process if he thinks that Congress can undermine the Supreme Court by openly passing a bill. He does. I later said it was ignorant of him to say so. It is. To undermine something specifically requires an element of stealth, and there's nothing stealthy about introducing a bill. That's about as public as it gets.

We already cleared up that you weren't being unethical in quoting Neely - you just didn't know his specific rebuttal of that quote. If Carter Wood ever specifically rebuts my specific usage of his post, I'll note it. And I'll also note that he's wrong. Congress cannot undermine the Supreme Court by passing a bill to undo a ruling it disagrees with.

Posted by: Justinian Lane | July 16, 2008 8:21 PM

Given that multiple people have corrected you by noting that Wood never claimed that Congress was "undermining the Supreme Court," your dishonesty in repeating it is appalling. You owe Wood another apology.

Given that Neely never "rebutted" anything, you're lying about that, too. But heaven forfend you read the book you're opining on.

Bayer didn't do anything wrong that caused any injury, but you knew that was my point and were being tendentious as usual.

Posted by: Ted | July 17, 2008 12:29 AM

Even if you were to incorrectly read Carter's statement as saying Congress undermining preemption in general, it makes no difference. Issuing a press release followed by introducing a bill is not undermining anything. Maybe if some Congressman tried to slip something into an unrelated, 300 page bill, maybe that could be considered undermining. But when someone goes out of their way to let the public know they're directly challenging something, that isn't undermining. So once more, Carter was ignorant to use the word undermine.

I would say Neely's statement to me on the phone counts as a rebuttal.

"Bayer didn't do anything wrong that caused any injury..."


Just a few comments earlier you (incorrectly) stated, "This is was dishonest backpedaling from Lane's original false argument..."

Now what have you just done, Ted? You have dishonestly backpedaled from your false argument that "Bayer didn't do anything wrong."

It was absolutely wrong of Bayer to withhold that information from the FDA, and Bayer admitted that publicly. We'll never know just how many injuries & deaths were caused by that wrong action. Dr. Mangano estimated 1,000 deaths per month between that meeting and when Trasylol was finally yanked from the market. It's certainly posssible that if it had been provided with that information, the FDA might have taken action even one month sooner. That's less speculative than your absurd claim that if it weren't for product liability lawsuits, there might be a cure for Ted Kennedy's cancer.

Posted by: Justinian Lane | July 17, 2008 10:35 AM


The first entry in the Oxford English Dictionary defines "undermining" as:

"The action of digging under, excavating, eroding, etc. Also in fig. contexts."

Thus, when you consider that this is the meaning the author likely intended, your claims that s/he is "ignorant" is really just tasteless.

In that light, I really think that the reasonableness of your posts would improve by several orders of magnitude were you not to first attribute various claims to people they haven't taken.

Posted by: Lawyer | July 17, 2008 2:37 PM

So now we're back to quibbling over dictionary definitions. Wonderful.

Regardless of whatever meaning of undermine Carter had in mind, the gravamen of my post is:

1: Reformers criticize us for trying to accomplish our goals in the courts instead of the legislature. When we try and accomplish them in the legislature, they're still not happy. I guess that just leaves us Executive Orders.

2: There absolutely nothing improper with Congress passing a law in response to a SCOTUS decision it disagrees with. This is how the system is supposed to work. Several SCOTUS opinions have directly suggested that Congress should change the law if it disagrees with the result.

And I didn't attribute any position to Carter. Carter wrote that there is legislative undermining under way. Cute play on words, but absolutely inaccurate. But I understand that a headline of "Congress properly exercises its role as a co-equal branch of government and drafts legislation in response to a Supreme Court decision" isn't nearly as catchy.

If Carter ever contacts me to let me know which meaning of undermine he or she (I think he, but I'm not sure why) meant, then I'll update the post to reflect it. But from everything of Carter's that I've read, I suspect he meant the more common "secretive/insidious" definition.

Posted by: Justinian Lane | July 17, 2008 3:07 PM

"So now we're back to quibbling over dictionary definitions."

One would think that it was someone else other than the person who is complaining over "quibbling" who introduced an implausible dictionary definiton to rationalize his unfair attack on Carter Wood. Which Lane still hasn't apologized for, even though, according to his previous posts on the "ethics" of quoting people, Lane's behavior was "unethical."

Justinian then proceeds to make several dishonest arguments in his 3:07 comment by continuing to pretend that Wood was complaining about means, rather than ends.

Then he lies by saying "I didn't attribute any position to Carter" -- even though he attributes a position to Carter in the title of the post!

I wonder what the Character and Fitness Committee considering your bar application in 2009 would think about such behavior?

Posted by: Ted | July 17, 2008 10:43 PM

"So now we're back to quibbling over dictionary definitions."

One would think that it was someone else other than the person who is complaining over "quibbling" who introduced an implausible dictionary definiton to rationalize his unfair attack on Carter Wood. Which Lane still hasn't apologized for, even though, according to his previous posts on the "ethics" of quoting people, Lane's behavior was "unethical."

Justinian then proceeds to make several dishonest arguments in his 3:07 comment by continuing to pretend that Wood was complaining about means, rather than ends--even though he has been corrected on this point by several commenters.

Then he lies by saying "I didn't attribute any position to Carter" -- even though he attributes a position to Carter in the title of the post and in the very previous paragraph of the comment!

I wonder what the Character and Fitness Committee considering Lane's bar application in 2009 would think about such behavior?

Posted by: Ted | July 17, 2008 10:44 PM

Wow, we're really slinging the mud now, aren't we? Dragging character and fitness into this... unbelievable. What's next - are you going to insult my mother? You often suggest I'm playing high school debate, but it seems you're playing kindergarten debate.

I hope you'll spend the weekend reflecting upon how boorish and childish your behavior in this thread has been.

Posted by: Justinian Lane | July 18, 2008 11:36 AM

I'm not joking. You repeatedly smear Carter Wood in this post and in the comments -- which are unethical by your very own definition of the ethics of quoting people that you've used to smear others, as well as by the normal concept of not lying -- the multiple lies in your 3:07 PM comment, and then you have the gall in your 10:35 AM comment to lie that Neely "rebutted" my accurate quote of him when you know that's not true. You have convinced me that you're not fit to be an attorney if the character and fitness requirements have any meaning. It isn't just this post and this comment thread: it's a repeated pattern of misquoting people, misrepresenting arguments, and then lying about it afterwards without ever apologizing or retracting your comments when you get called out on it. (Indeed, even when you get called out on a lie, like the false claim that Neely was "ironic" in a book you haven't read, you then go back and unapologetically repeat the lie after you know it's false.) It isn't just honest mistakes, either, because if you were just sloppy you'd occasionally be sloppy in the other direction. You're a hazard to your future clients because you lack any ethical compass when it comes to argumentation.

Posted by: Ted | July 18, 2008 10:12 PM

Are you trying to get a rise out of me, Ted? Are you trying to piss me off and get me to blow up so I can look just as foolish as you do every time you yell and scream about Neely? Or are you trying to get me to censor you, like you censor me when I challenge you at Overlawyered?

Well, you failed on all counts.

If anything, you've reassured me I'm doing something right: You got paid to defend Merck for their deadly drug Vioxx, and you currently work for a group who took trashbags full of money from Enron and Ken Lay. You said that Bayer didn't do anything wrong when it concealed data from the FDA and that concealment likely resulted in the deaths of thousands of people. If you're questioning my ethical compass, I know I must be on the right side of the issues.

Still waiting for a rebuttal of my Trasylol post, Ted.

Posted by: Justinian Lane | July 19, 2008 12:05 AM

I discussed Trasylol at Point of Law months ago; nothing new has happened since then that requires additional discussion. Your post certainly didn't make any relevant allegations that I hadn't already addressed.

And, yes, my defense of an innocent drug company that has saved hundreds of thousands of lives with its scientific discoveries against a pack of dishonest trial lawyers abusing the system is something I'm proud of. And I've been vindicated on multiple levels: the vast majority of juries ruled in Merck's favor; every honest appellate court to consider Merck's liability under reasonable standards of scientific evidence has concluded there was no evidence to find Merck liable and that the juries finding otherwise were misled by inadmissible evidence; the one remaining one struck down the punitive damages on the ground that there was no evidence justifying punitive damages; plaintiffs settled the case for a nuisance fee of pennies on the dollar, demonstrating that there was no "there" there in its litigation; thousands of cases are going to be dismissed for lack of scientific evidence, and thousands more are going to get a $5000 nuisance payoff for lack of evidence, vindicating my claim that fraud pervaded the plaintiffs-side of the litigation.

Ken Lay was long dead when I joined my current employer, and his crimes weren't a tenth as bad as those of Milberg Weiss, who funds this blog, which has been silent about Milberg Weiss.

As is typical when you're called out on a lie, you try to change the subject by lashing out with personal attacks and guilt by association.

In contrast, I'm calling you out on *your* ethics for *your* actions in *this* thread, which fail *your* alleged standards. You owe Carter Wood multiple apologies, and a lengthy letter detailing your pattern of dishonesty *is* going to the Character and Fitness committees of two states in 2009 unless you make that apology very soon or if you repeat the smear one more time.

The only reason you're remotely worried about it is because you know *your* words are readily divined as dishonest by an objective third-party source. That's correctable if you apologize for your lies.

Posted by: Ted | July 19, 2008 9:55 AM

Ted, you went off subject WAY before I dragged Enron into this. And if you think that Mel Weiss did isn't even even as tenth as bad as what Enron & Ken Lay did... you're so out of touch with reality that it's positively frightening.

I owe Carter Wood nothing. I stated that he misunderstands the legislative process. If he thinks Congress can undermine SCOTUS by passing legislation, I'm right. I also stated he was ignorant for using the term undermine in that context. He is.

As to your impotent threat? Well, I just repeated my "smear" two more times, didn't I?

Posted by: Justinian Lane | July 19, 2008 11:33 AM

I'm sure the Character and Fitness Committee will be interested to learn that you think they are "impotent" to act against admitted dishonesty.

Posted by: Ted | July 19, 2008 5:17 PM

At this point, you've got three options, Ted:

1: Retract your threat now and I'll let this die quietly with no hard feelings.

2: Write the letters and make yourself look even more foolish than Jack Thompson; I've done nothing even close to unethical and you know it.

3: Don't follow through with your threat. Show the world you don't have the backbone to do anything more than make impotent threats.

It's your move, Ted. Think it through.

Posted by: Justinian Lane | July 19, 2008 6:15 PM

The only threat here is the threat implied by "I'll let this die quietly with no hard feelings" that if I don't agree to refrain from fulfilling my ethical obligation under Rule 8.3, you will take some action against me.

I'm not threatening anything. I'm stating that, in my opinion, you have demonstrated yourself beyond a shadow of a doubt to be maliciously dishonest, and that I believe this invokes certain obligations under Rule 8.3(a) to someone who has seen this behavior from you.

I admit that I had previously given you the benefit of the doubt, and thought that perhaps you were just careless or had reading comprehension problems, but this thread really proves otherwise to me: you were thoroughly refuted, and kept digging yourself into a deeper hole to rationalize your original lie with more and more lies--even though you have repeatedly stated in other contexts that it is wrong and "unethical" and "dishonest" to ascribe a meaning to an author that he does not have. It proves bad faith on your part.

If you think you've done nothing unethical, why do you care? Surely objective parties will agree with you if you're as innocent as you claim. I'll have wasted a couple of hours writing a meaningless letter, and it will have no effect. It's only because you know in your heart of hearts that I'm right and you don't want a Character & Fitness Committee exploring your systematic misrepresentations and dishonesty that you're threatening me.

Posted by: Ted | July 20, 2008 12:11 AM

I'm not threatening you at all, Ted. I'm merely telling you that if you do make good on your impotent threat, you're going to look like a foolish ass because I've done nothing wrong. And if you don't make good on your threat, well, the whole world will know you're not a man of your word.

I'd also point out a couple flaws in your plan. First, even I don't know what state I'm going to take the bar in... are you going to contact all fifty states? Perhaps even more importantly, Rule 8.3(a) doesn't apply to me, Ted. It applies to reporting unethical conduct by other lawyers, not law students. But you know 8.3(a) doesn't apply to me. So you're probably going to use that to save face when you meekly back down. Of course, my law school has a code of ethical conduct that does apply to me. I suggest you step up to the plate and write to them now.

Either way, I hope you'll have the professional courtesy to quit making impotent threats here at Tortdeform. You add nothing to the discussion when you shout "Neely! Neely! Neely!" or launch into some other personal attack against me. Your rude and unprofessional behavior reflects poorly upon you and poorly upon AEI for placing you in a position of authority.

It's plain to everyone here that you're taking our disputes way too personally. You're just too close to this to see things clearly. Perhaps you should ask one of your level-headed colleagues like Jim or Walter for their candid opinion on how you should behave. I disagree with both of them on a regular basis yet neither of them spams this site with personal attacks.

Again, the decision is yours, Ted. You can salvage your reputation and rejoin the discussion about the civil justice system, or you can pick a pointless fight with me that you will lose.

Posted by: Justinian Lane | July 20, 2008 12:57 AM