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Legal Realism Again

By Big Tent Democrat, Section Supreme Court
Posted on Mon Dec 15, 2008 at 12:49:38 PM EST
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Discussing the SCOTUS' 5-4 decision that state law fraud claims are not preempted by federal labelling statutes, Ann Althouse notes:

This is one of those cases where state law is preserved, yet no one extols the values of federalism. No one even says the word "federalism," as the liberal Justices decide in favor state power, and the conservative Justices worry about "non-uniformity." The tort plaintiffs will be able to go forward with their case, and the cigarette companies must take their lumps.

Sounds like Prof. Althouse thinks some results oriented votes were cast in that case. I imagine they were. It reminds me of my dispute with Prof. Althouse over Bush v. Gore.

Speaking for me only

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    Legal Realism Again | 14 comments (14 topical)

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    We are all legal realists, right? (none / 0) (#1)
    by andgarden on Mon Dec 15, 2008 at 01:07:44 PM EST


    All judges are (none / 0) (#2)
    by Big Tent Democrat on Mon Dec 15, 2008 at 01:12:47 PM EST
    Llewellyn was not advocating a theory of interpretation - he was describing a reality.

    Parent
    Tomayto Tomahto ;-) (5.00 / 1) (#3)
    by andgarden on Mon Dec 15, 2008 at 01:15:16 PM EST


    Parent
    Having spent more (none / 0) (#4)
    by NYShooter on Mon Dec 15, 2008 at 01:41:54 PM EST
    than my share of time in court proceedings, how can a string of 5-4 decisions be good for us?

    This is THE LAW we're talking about, not politics.

    Right?

    bwahahahah (none / 0) (#5)
    by andgarden on Mon Dec 15, 2008 at 01:49:13 PM EST
    If you want "THE LAW," you'd best look somewhere other than a court. There are some folks in Rome who have a popular concession. Jerusalem and Mecca too.

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    You.. (none / 0) (#8)
    by NYShooter on Mon Dec 15, 2008 at 03:06:18 PM EST
    thought I was serious?

    Seriously?

    Just a thought; perhaps the dilemma is the juxtaposition of THE LAW with JUSTICE?

    Parent

    smokers reminiscing... (none / 0) (#6)
    by jedimom on Mon Dec 15, 2008 at 02:17:43 PM EST
    I must confess when I was a smoker, when I began smoking as a teen of course, 14, in NYC, (waaay before anyone ever asked for id, when cigs were 50 cents a pack), I DID switch at one point to Marlboro Lights because they were supposed to be better for you, and then started coughing up blood seriously, so switched back to regulars (I know I know, HA!)

    But really, I can vividly remember being in the schoolyard with my friends and talking about the rumors there was in fact fiberglass in the Marlboro Lights filters and all of us switching back...even dopey teens were had like in depth discussions about it, they SOOO marketed them as safer ....

    Anywho they certainly DID market lights as better for you, they damn well did, and they did market it to teens specifically, lying rat frakers....

    so glad the SCOTUS did the outcome based ruling, is that like the same theory as jury nullification, they just find a way to ignore precedent and statutes to get the result they want eh?.....

    In the early 50s (5.00 / 1) (#7)
    by andgarden on Mon Dec 15, 2008 at 02:26:05 PM EST
    Kents used crocidolite asbestos in the filter.

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    I know I will get flack for this (5.00 / 1) (#9)
    by eric on Mon Dec 15, 2008 at 03:28:47 PM EST
    but, as a former lawyer for a major tobacco company, I would challenge you to find one single example of marketing which suggested light cigarettes are "better" for you.  It just didn't exist.

    The truth is trickier.  The FTC required the cigarette companies to list the amount of "tar" on the pack, along with nicotine.  This regulation goes back to 1966.  Cigarette companies did make reference to lower tar cigarettes.  However, they never said that these were better for you.  If you are going to blame anyone, blame the FTC for making "tar" a measurement that average folks might equate with something of value.  Truth is, "tar" isn't really a good measure of anything.  The FTC finally figured this out and abandoned the labeling requirement just this year.  The FTC said,

    "The commission believes the statements of tar and nicotine yields as measured by this test method are confusing at best, and are likely to mislead consumers,"

    So there you have it.  A government mandated labeling requirement was misleading and the cigarette companies get blamed.

    Parent

    If there was truth in advertisng (none / 0) (#10)
    by Fabian on Mon Dec 15, 2008 at 04:11:30 PM EST
    Tobacco products would be labeled: Contains nicotine, an addictive stimulant & nerve toxin.

    (For stomach churning fun, watch the X-Files episode that involved the prophylactic intake of large quantities of an insecticide - nicotine.)

    Parent

    Precise term "better" is no requirement. (none / 0) (#11)
    by wurman on Mon Dec 15, 2008 at 07:37:47 PM EST
    And limited to "light" cigarettes makes no sense either.  All tobacco firms attempted to market the idea that smoking is BETTER for you.  And the idea of light or mild or smooth or clean or fresh is systemic in the ads.

    Some long-term ad concepts here:

    Camel slogans clearly imply health benefits.

    More Doctors Smoke Camels than any other Cigarette
    For Digestion's Sake - Smoke Camels

    L&M slogan--
    L&M. Just what the doctor ordered

    Here's an old Lucky Strike image that uses the line "less irritating."

    Now, here's the koop de gracie.  Arthur Godfrey's image on a print ad does not merely claim that Chesterfields are "better." The fifth ad down from the top claims they are "BEST!"

    Contra your statement, quoted in Clearing the Smoke, page 63:

    "Filtered cigarette smoke is better for your health." (Viceroy)

    And a version of the actual Viceroy ad is here.

    No flack.  You're wrong.

    Parent

    Just watched a re-run (none / 0) (#12)
    by NYShooter on Mon Dec 15, 2008 at 09:20:10 PM EST
    of "The Day The Earth Stood Still, 1951."

    When the doctor treating "Klaatu" comes out of his hospital room, he begins to confer with two other doctors waiting there. What's the first thing all three doctors do before discussing the situation?

    Right, light up. (couldn't see the brand)

    Parent

    Those ads predate (none / 0) (#13)
    by eric on Tue Dec 16, 2008 at 09:34:07 AM EST
    the issue of "light" versus regular cigarettes.  Before the 1950's, there were ads that featured doctors that would opine about the health of certain cigarettes.  Much of the thinking then was to avoid inflamation or harshness.  Filter and milder cigarettes were advertised in this way.

    However, all of these ads came before the 1952 Readers Digest article that linked cancer with smoking.  After that, everything changed.  Government began its inquiry and regulations ensued.  The FTC began requiring labeling of "tar" and nicotine in 1966.

    Now, since that time, cigarettes have been called "lights" but this only relates to the amounts of this "tar".  At no time has any cigarette company advertised a light cigarette as "healthy" or "better".  Of course they didn't.  Everybody knows that cigarettes are bad for you, so claiming otherwise would be absurd.

    People seem to imagine the "light" means better, but if you are going to blame someone, blame the FTC.

    Parent

    You asked for a single example. (none / 0) (#14)
    by wurman on Tue Dec 16, 2008 at 07:50:41 PM EST
    I referenced one.  Viceroy, King Sano, & others marketed themselves as "lights" all the way back to the 1930s.  I didn't refer you to Sano because they used the term "safer" as their guarantee of a light effect on the smoker.

    Lighter, milder, & smoother are systemic terms that predate your referenced RD article.

    You seem to take this very seriously.  ALL tobacco advertising is stupendously funny.  Each of the references cited by me point out the stupidity & foolishness of the ads.  So, quibble if you will that "light" had no meaninging until 1952.  Even so, Viceroy continued long past that date.

    Parent

    Legal Realism Again | 14 comments (14 topical)

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