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Continuing a Discussion of the Supreme Court's Term: Statutes

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The constitutional cases have the drama, because by definition they involve a challenge to another branch of government.

But it is arguable that SCOTUS has its impact on ordinary lives more through statutory construction: a process which may have been made possible by earlier constitutional decisions, but one which can take those decisions as a given.

One can always say, "oh, SCOTUS isn't actually exercising power here, because if Congress didn't like the way it reads the statute, Congress could always change it."  But the stars have to align rightly for that to happen. SCOTUS has wide latitude to read statutes one way or another before it incites such a legislative re-alignment.

And so we come to some of the statutory decisions of this term.

Bank of America v. Miami  

This term, by 5-3 vote, the  Justices interpreted the Fair Housing Act of 1968 as authorizing lawsuits by anyone who "claims to have been injured by a discriminatory housing practice," inclusive of the municipalities in which the banks allegedly engaged in those practices. Miami's claim was that B of A's discriminatory practices meant more foreclosures, which meant lower property values, which meant a lessened revenue stream to the city. Such practices also meant, on the plaintiffs' theory, an increase in the city's expenses for fire and police services for the deteriorating neighborhoods.

SCOTUS said that these claims are judicially cognizable.

At oral argument on the case, the bank's lawyer, Neal Katyal, contended that the city's theory, if upheld, would prove limitless. Tens of thousands of cities could bring similar lawsuits, as could landlords or gardeners, who could create similar "for want of a nail" rationales.

Justice Breyer, in his opinion for the court, spoke to this point. He acknowledged that "the housing market is interconnected with economic and social life" in such a way that ripples of harm will flow far beyond defendant's specific misconduct, and he acknowledged that for the federal courts to entertain lawsuits "wherever those ripples travel" would result in more massive and complicated litigation than the Congress could have anticipated.

But, Breyer replied, this merely means that courts have to distinguish between proximate and remote causes, a traditional common-law activity of courts. Proximate cause is necessary to make out a cause of action for the City of Miami here, or for potential gardeners or landlords.  Proximate cause is something more demanding than mere foreseeability, and the court below will have to consider how much more demanding, on remand. For now, though, the litigation continues.

Honeycutt v. United States

Honeycutt, an interpretation of the Comprehensive Forfeiture Act. recognizes limitations on war-on-drug forfeiture, despite sweeping language of statute.

Given the long national nightmare called the 'war on drugs,' almost any anti-narc result is good news. This was even better news. This was an 8 - 0 vote. Gorsuch was not participating. Everyone else, including Alito and Thomas, voted in favor of what would once have been considered a left-of-center partisan position. What I take this to mean is that the narcs must now accept that their "good ol' days" are gone forever.

You don't have to be a weatherman....

Sandoz v. Amgen

Likewise, it is almost always good news when Big Pharma loses in court. It consists of a coddled crowd of cronies, crooks, and rent-seekers, and as such it deserves rebukes as completely as any such crowd in history.

In this case, Small Pharma beat Big Pharma in the interpretation of a complicated section of the Obamacare package called the Biologics Price Competition and Innovation Act of 2009. The BPCIA is NOT threatened by all the talk of "repeal and replace" in the two houses of Congress these days.

The gist of the complicated case is that Sandoz, small pharma, a maker of generics, gets to keep making and marketing biosimilar versions of filgrastim, also known under Amgen's trade name for it, Neupogen, Filgrastim is used to strengthen the human body's ability to generate white blood cells, in particular for patients who are receiving chemotherapy, which often weakens that natural ability.

Patent has become an especially complicated field of late, in large part because the Federal Circuit and the SCOTUS see the field in very different, mutually incompatible, ways, and the latter has made a regular practice out of taking cert from the decisions of the former.

At any rate, there are chemo patients who will find it easier to get what they need than they would have had SCOTUS not acted thus. Let's drink a toast to them then, though preferably not with a 'drug cocktail.'


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