That was the essence of what Pekelis was talking about, though there are dozens of pages in his article that deal with objections and with countervailing supporting reasons.
So . . . . what is to be said today about Pekelis’ points and, for that matter, Miller’s? Well, there are numerous things that can be said, but I will cover only a very few.
To begin with the least important -- to begin with the purely personal -- the articles by Miller and Pekelis had an impact on me. They showed that there were scholars, even at least one great mind, that saw law the same way I saw it then despite a complete dearth of such learning in my then-just-ended law school experience, and the way I still see it to this day.
Do judges try to act in ways that will maximize the general welfare? Sometimes yes, sometimes no -- sometimes they merely act according to their own, most often conservative to reactionary, prejudices, especially now with the reactionary, screw-the-small-guy five in charge of the Supreme Court.
Do the courts use the best that social science has to offer in reaching decisions? Sometimes yes, sometimes no. They are aware, of course, because we as a society are far more aware than when Pekelis and Miller wrote, that both social science and even supposed hard science can come and go in fads, that there often are opposing views in these matters, and that reliance on them can be reliance on the merely temporary or the ultimately disproven.
Overall, I am not at all sure we are better off on these scores than when Pekelis and Miller wrote, although I also think that one of the reasons we may not be better off is because we now, as through most of our history, have reactionary courts that are determined to impose right wing values on society -- that is what made George W. Bush president, you know.
I’m going to discuss only one concrete recent example that bears on what I am talking about here. It perhaps does not have an exact one to one relationship (although maybe it does), but is close enough, and aggravating enough, to warrant mention.
Recently, in an opinion by Justice Scalia, the screw-the-small-guy five, this time joined, shockingly, by Souter, Breyer and in part by Stevens, ruled, over a powerful dissent by Ginsburg -- so that in toto it was the screw-the-small-guy five plus two and one-half against one and one-half -- that a man named Riegel could not bring suit under state law against a manufacturer, Medtronic, whose catheter ruptured in Riegel’s heart during open heart surgery. Riegel alleged that the catheter was defective (as well as that his doctor had screwed up in various ways). To make a long legal story short, the Supreme Court majority ruled that Riegel could bring no case under state tort law, because Congress had given the Food and Drug Administration the power to regulate the safety of medical “devices.” New York law was said to therefore be “preempted” by Congress’ law. The FDA, Scalia said, uses a cost-benefit analysis under which it considers if more lives “will be saved by a device which, along with its greater effectiveness, brings a greater risk of harm.” But the jury in a state law case, said Scalia, will not make such an analysis. Rather, it “sees only the cost of a more dangerous design.”
Let me translate Scalia’s statements into unvarnished English: state law against defective medical devices cannot be invoked, because a jury will find the company guilty for defective design or manufacture, whereas the geniuses at FDA will allow the device to be used in a defective state, instead of demanding that the defect be cured, because the defective device will help those whom it does not harm or kill.
And, by the way, Scalia, one of the chiefs of the screw-the-small-guy five, pays no attention to the fact that the company’s lawyers could argue to the jury that the device was designed and manufactured as well as is technologically possible, or possibly comes with warnings the patient had to be told of, etc. Nope. Scalia ignores all this and just makes some assumptions about what juries might do, so that he can arrive at the pro big business conclusion he desires.
Nor do Scalia or his pals in the majority give any consideration to a salient fact that comes up time and time again in the news and events of this country. To wit, the FDA makes lots of mistakes. It does lots of bad things. Many think it is in the hip pocket of the big drug and device companies, even the more so under the Republicans. Yet the screw-the-small-guy five-plus-two-and-one-half want to take away the protection given by state law against such federal incompetence -- against incompetence, if not venality, of the type that pervades Washington.
In her powerful dissent, Ginsburg said Congress gave the FDA the power to regulate medical devices because the failure of “A series of high-profile medical devices intended for human use . . . . Conspicuous among these failures was the Dalkon Shield” of horrendous history. But Congress never intended, Ginsburg said, to prevent (to preempt, in legalese) state common law claims by injured parties, a point for which she cited various elements of the legislative history and even cited a supporting statement by the former chief counsel of the FDA itself. Scalia, on the other hand, ignored legislative history because he leads a movement to completely abandon its use. So to hell with what Congress wanted. (Stevens took the pretty odd position in a concurrence that while Ginsburg is right about the history and legislative purpose of the federal law -- which means he should have voted with Ginsburg regardless of the unguarded language used in the statute -- he would nonetheless vote with the majority because the wording was broad.)
So what we have here is a Supreme Court decision that once again screws over the small man; does so without any basis in Congressional history or purpose, but, rather, contrary to that history and purpose; and screws him over on the basis of unsupported assumptions of what juries might do and with no regard for the recognized fact that the federal agency that is supposed to protect the small guy is incompetent and, apparently, is in the hip pocket of the big drug and device makers. This is not the concern for the general welfare, the concern for a jurisprudence of welfare, or the concern for what investigations or social science show to be the facts, that was articulated so many years ago by Pekelis and Miller.
I close with a last point that I am unable to resist. Thirty-six years ago, in 1972, the DePaul Law Review printed a symposium on the shifting balance of powers between the federal government and the states. The federal/state balance is a subject that is ever with us, and is with us still, of course. I was asked to and did write the Introduction to that Symposium, and think the antepenultimate and penultimate paragraphs of the Introduction are pertinent to a case like Medtronics:
The abuses of modern technology and the modern economy are usually perpetrated by interstate organizations, and curtailing these abuses will consequently have interstate effects of one kind or another. Thus, the easy answer for courts to give on the preemption problem is often that the power of cure resides solely in the national government. This is particularly easy when the national government has already addressed itself to the problem in some way. But, knowing what we do know of the inadequacies in Washington, the easy answer may not always be the safe one from the standpoint of health and welfare.
The real challenge is for the courts to work out a set of coherent legal doctrines which have the effect of insuring that the citizen obtains adequate protection against technological and economic abuse. Such doctrines would have to be flexible enough to permit protection to be given by the political branches of the federal government when they are doing a better job than the states, and to be given by the states when they are doing a better job than the political branches of the federal government. At the same time, the doctrines would have to be sufficiently principled so that decisions would not be rendered on a totally ad hoc basis. Lastly, the complete set of doctrines would have to provide for judicial protection in cases where neither the states nor the political branches of the federal government are protecting the citizen: in such cases the judicial protection would have to be based on some sort of evolving common law.
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