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Thursday round-up

Subscript Law offers a graphic explainer for Monday’s opinion in Merck Sharp & Dohme v. Albrecht, in which the court held that whether the FDA would have rejected a proposed change to a prescription drug label, pre-empting a state-law claim for failure to warn of the drug’s risks, is a question of law for a judge to decide. At the NCSL blog, Lisa Soronen observes that “[w]hile juries are unpredictable, they have a reputation for being more favorable to injured individuals than large, well-funded corporations,” so that “juries may be more likely than judges to conclude that the FDA would have agreed to the label change because such a ruling will make it possible for a state-law failure-to-warn claims to go forward.” At Law360 (subscription required), Emily Field explains that the court “also provided some clarity for the ‘clear evidence’ standard it set out for failure-to-warn cases a decade ago.”


  • At Bloomberg Law’s Cases and Controversies podcast, “Kimberly Robinson and Jordan Rubin break down the 5-4 decision in Herrera v. Wyoming, along with the other two opinions from Monday,” and they “also try to figure out what’s happening on the ‘shadow docket’ with RBG and Justice Thomas.”
  • Richard Wolf reports for USA Today that in New York State Rifle & Pistol Association Inc. v. City of New York, New York, “[g]un rights groups are using New York City restrictions that may be repealed as a rallying cry to press the Supreme Court for a major expansion of its Second Amendment precedents.”
  • At Empirical SCOTUS, Adam Feldman analyzes the justices’ voting patterns so far this term, which “reinforce the proposition that Kavanaugh and Gorsuch have not been in consistent agreement,” noting that “if they continue at this rate they will vote together the least frequently of any two justices in their first terms together appointed by the same president going back to President Kennedy.”

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Recommended Citation: Edith Roberts, Thursday round-up, SCOTUSblog (May. 23, 2019, 6:29 AM),