Administrative law

  • September 22, 2011
    All the Justice Money Can Buy
    Corporate Greed on Trial
    Snigdha Prakash

    By Snigdha Prakash, an investigative journalist and former NPR reporter. Prakash received the Fund for Investigative Journalism's Gene Roberts Book Award for All the Justice Money Can Buy: Corporate Greed on Trial, her first book.

    A few years ago I found myself in the journalistic equivalent of hog heaven — behind closed doors I had never expected to penetrate — watching from a ring-side seat as plaintiffs’ lawyers took on the drug giant, Merck, in a products liability trial involving Merck’s popular painkiller, Vioxx.

    Merck had withdrawn Vioxx in September 2004, citing new data showing an increased risk of heart attacks on Vioxx. Some 20 million Americans had used Vioxx over its five-and-a-half year market life, and scientists would implicate it in up to 54,000 deaths. By the end of 2006, Merck faced 27,000 products liability cases. But Merck’s lawyers insisted the company would never settle with the plaintiffs; rather it would defend every case in court. It was a hollow threat. As is usual with mass torts, the cases had been consolidated under a federal multi-district litigation (MDL) judge and a few state mass tort judges, and the judges were unlikely to countenance Merck’s foot-dragging indefinitely. Fifteen cases had already gone to trial by this point (I had covered some of them as a reporter for NPR), and Merck had won most.

    Two more cases were set to be tried in New Jersey state court in January 2007. Mark Lanier, the Texan trial lawyer who had twice beaten Merck, would lead the plaintiffs’ legal team, and I arranged to be embedded with his lawyers and observe the trial up close. For seven weeks I shadowed Lanier and the other plaintiffs’ lawyers, sitting in on early-morning strategy sessions in Lanier’s hotel room, riding to court in his rental SUV and squeezing into the stuffy, bare-bones plaintiffs’ war room in the Atlantic County Civil Courthouse during breaks in testimony. I took notes, I asked questions. Eventually, I wrote a book about the experience, All the Justice Money Can Buy: Corporate Greed on Trial.

  • August 24, 2011
    Guest Post

    By Jeffrey M. Hirsch, a professor at the University of North Carolina School of Law. This is a cross-post from Workplace Prof Blog.

    Since the initial uproar over the Boeing complaint, I've been sitting back and waiting for the hearing and ALJ recommended decision stage to wrap up. But a recent column by the NY Times' Joe Nocera has prompted me to post something yet again. When a columnist whose most recent notoriety was calling Tea Partiers "terrorists" writes a column that looks like it was written by Boeing, I just can't resist. I won't comment on his positive descriptions of Boeing, which many in the labor field might take issue with, but instead focus on his erroneous description of the case and the NLRB.

    Nocera starts by claiming that he is "mildly obsessed" over the issue. I'd suggest that he make the obsession stronger, because it's apparent that he hasn't taken the time to read the complaint, read the NLRB's statements on the complaint, talk to anyone who knows the law, or even spent five minutes on the NLRB website to determine its basic structure and function.

    Nocera at least said there was a "complaint" at issue rather than a decision, although he doesn't seem to understand the difference between the NLRB and the NLRB's General Counsel. Indeed, he states that most of the Board's "top executives" were nominated by Obama, without recognizing that the GC is the only political appointee who has looked at this case.

    Nocera also messes up the GC's proposed order. The GC did not say that all the South Carolina jobs have to be moved back to Washington. As the NLRB's press release clearly stated: "To remedy the alleged unfair labor practices, the Acting General Counsel seeks an order that would require Boeing to maintain the second production line in Washington state. The complaint does not seek closure of the South Carolina facility, nor does it prohibit Boeing from assembling planes there." That may seem like splitting hairs given the economics involved, but Nocera and others are wrong to say that the NLRB is trying to take jobs away from a certain area. If Boeing wants to keep future work in SC, it can. Besides, the reality is that if Boeing were to lose, the likely result would be to pay the Washington workers backpay (and maybe some frontpay) in lieu of moving the work.

  • August 15, 2011

    by Nicole Flatow

    Earlier this month, a group of 34 legal and labor policy experts urged Rep. Darrell Issa not to intervene any further in an ongoing legal proceeding on whether Boeing violated federal labor law, warning that subpoenaing documents from an active case would threaten the independence of the National Labor Relations Board.

    “We believe that this document request, combined with recent statements noting the desire to possibly ‘eliminate the NLRB,’  may well cross the line delineated by the courts,” they cautioned in a letter.

    But Issa’s House Oversight and Government Reform Committee went forward with a sweeping subpoena anyway, requiring the NLRB to submit all documents related to the Boeing case by this Friday.

    Now, several House Democrats have sent their own letter accusing Issa of overstepping his bounds to serve corporate interests, and calling on him to drop the subpoena, The Huffington Post reports.

  • August 2, 2011

    by Jeremy Leaming

    A group of law professors and labor experts are bringing more attention to the ongoing efforts of House Republicans, and right-wing activists, to hobble the National Labor Relations Board (NLRB) and scuttle its complaint that Boeing violated a provision of the National Labor Relations Act (NLRA). The NLRB says Boeing violated federal law when it moved production of its 787 Dreamliner jet from its Washington State plant to South Carolina in retaliation against workers who had exercised their right to strike.

    As noted here, lawmakers in the House have also pushed a bill that would gut the NLRB’s ability to hold corporations accountable for trampling workers’ rights, and specifically nullify the complaint lodged against Boeing. That complaint is now being considered by an administrative law judge in Seattle. The judge tossed aside Boeing’s motion to dismiss the case in June.

    Rep. Darrell Issa (R-Calif.), chair of the House Oversight and Government Reform Committee, has also pressured the NLRB over its legal action against Boeing. The Hill reported last month on a letter Rep. Issa sent to NLRB Acting General Counsel Lafe Solomon requesting documents related to the case.

    Recently more than 30 legal and labor policy experts in a letter to Issa urged him to back off.

    “As national legal and labor policy experts, we are gravely concerned by the undue pressure that this letter, and its threats to compel disclosure of privileged documents, have placed on an independent law enforcement agency.

    “We are particularly concerned,” the professors’ letter continues, “because the documents at issue relate to a case currently being tried before an Administrative Law Judge in Seattle, Washington. We therefore strongly urge the Committee to let this case proceed according to the policies established in the National Labor Relations Act without further interference.”  

    The letter concludes, “In our view, independent federal law enforcers must be protected from undue interference by Congress. If the Committee continues to inappropriately interfere in this process, these serious charges of illegal behavior may never be properly adjudicated, thereby denying both parties the opportunity to tell their full story. Such a result would jeopardize our long-held democratic principles and respect for the rule of law.

    Law professors Ellen Dannin and Ann C. Hodges, who joined the letter, have provided ACSblog with guest posts about the political interference with the NLRB’s complaint against Boeing. In her post, Hodges explains why the NLRB’s complaint “does not justify Congressional intervention in the legal process of an ongoing case, an appalling overreach by a coordinate branch of government.”

    Dannin, in her post, says NLRB has been transparent about the case – posting its complaint on its website and “memoranda summarizing the facts of the case and information about the investigation and trial procedure. Despite this, Congressional representatives are demanding administrative capital punishment for the NLRB’s ‘crime’ of doing its job.”

  • July 29, 2011
    Guest Post

    By Nicholas Bagley, Assistant Professor of Law, University of Michigan Law School.

    These are heady days for administrative law. In hearing after hearing on Capitol Hill, members of Congress have examined the virtues and vices of a host of pending bills that aim to encumber regulatory decision-making. There are bills to require congressional approval before major regulations take effect, bills to subject informal agency guidance to notice-and-comment rulemaking, and bills demanding the elimination of one regulation every time another is imposed. For all their differences, however, the bills share a common purpose: to put the kibosh on what their sponsors decry as job-killing regulations.

    This is all a bit surreal. Hobbling federal agencies makes sense if the burdens of regulation systematically exceed the public benefits. But they don’t. In comprehensive studies, both Republican and Democratic administrations have repeatedly found that regulation confers substantial net benefits. The notion that federal bureaucrats as a group are heedless of social costs — or worse, that they regulate just for the thrill of it — has no foundation in either fact or theory.

    The truth is that some agencies grow so close to industry groups that they may not regulate diligently enough. A few examples: