California Can’t Usurp USEPA’s Authority Over Roundup® Labeling

Commentary, Federal Preemption /

California’s Attorney General just doesn’t get it. Maybe he’s been watching too many of those slick infomercials trolling for Roundup® “victims.” In 1972 Congress enacted a law—the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA)—that gives the U.S. Environmental Protection Agency (EPA) sole and exclusive authority to regulate the content of pesticide product labeling. FIFRA vests EPA […]

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Flat-Fee Legal Billing Can Liberate Attorneys

All Publications, Amicus Strategy & Procedure, Commentary, Published Articles /

My op-ed on the joy of handling appellate work on a set-fee basis, reproduced below and downloadable above, was published by Law360 on November 4, 2019. It was Law360’s most-viewed Expert Analysis during that week. The op-ed was republished in the February 2020 edition of DRI’s For The Defense magazine. Have you discovered the joy of

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US EPA’s Glyphosate No-Risk Finding Withers Plaintiffs’ Bar

Commentary /

The “victims’ rights  bar” is faced with a new challenge: how to convince a jury that a widely used weed control product causes cancer even though after decades of study, the federal agency responsible for regulating the product has concluded that the product “is not a carcinogen,” and that “there are no risks of concern

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Climate Alarmists’ “Kids’ Suit” Barred By Separation of Powers

Commentary, Federal Courts of Appeals /

This post was reprinted on January 27, 2020 by the Washington Legal Foundation under the title “No Redress: Future Generations’ Overheated Climate-Related Suit Doesn’t Stand”  Ninth Circuit Holds That “Kids’ Suit” Plaintiffs Lack Standing On January 17, 2020, climate-change activists ran into a man-made constitutional roadblock called the separation of powers. A Ninth Circuit panel

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How Far Does the First Amendment Go To Protect Public Debate About Climate Change?

Commentary /

When the Supreme Court denies certiorari, i.e., declines to hear an appeal, it normally issues a one-line order without explanation. Sometimes, however, one or more Justices will file a formal dissent discussing why the Court should have granted review. Justice Alito’s November 25, 2019 dissent from the denial of certiorari in two related defamation suits,

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“Friendly Guidance” from the Supreme Court Clerk

Amicus Strategy & Procedure, Commentary, US Supreme Court /

The Clerk of the Supreme Court of the United States has posted a Memorandum To Those Intending To File An Amicus Curiae Brief (October 2019). For attorneys with experience authoring and filing Supreme Court amicus briefs — see Learning the High Art of Amicus Brief Writing — the Clerk’s guidance does not contain any earthshaking

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EPA Finally Flexes Some Preemption Muscle

Commentary, Federal Preemption /

Note:  On August 26, 2019, the Washington Legal Foundation published this article as part of its Legal Pulse blog.   FIFRA, the federal pesticide statute, gives the U.S. Environmental Protection Agency (EPA) exclusive authority to regulate the content of pesticide labeling, including health & safety warnings. Section 24(b) unequivocally declares that a “State shall not impose .

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Pesticide Ban Bills Ditch Science For Politics

Commentary /

More than 100 members of the House of Representatives—all Democrats—are sponsoring or co-sponsoring the so-called Ban Toxic Pesticides Act of 2019, H.R.230. This short bill would immediately ban all sale and use of chlorpyrifos, a highly beneficial insecticide long used in agricultural production and for certain other uses such as mosquito control and turf maintenance.

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Supreme Court’s Double-Jeopardy Decision Bolsters Politically Motivated State Prosecutors

Commentary, US Supreme Court /

The Supreme Court’s 7-2 decision in Gamble v. United States, No. 17-646 (June 17, 2019), reaffirming the “dual-sovereignty doctrine”—under which “a State may prosecute a defendant under state law even if the Federal Government has prosecuted him for the same conduct under a federal statute,” slip op. at 1—is a goldmine for politically motivated state

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Justices Kavanaugh & Gorsuch Again Display Superb Judicial Writing On Opposite Sides of Same Case

Commentary, US Supreme Court /

I’ve previously written about Justice Kavanaugh’s and Justice Gorsuch’s brilliant legal writing styles. For example, in Newest Justices’ Dueling Opinions Sparkle (For The Defense, June 2019), I describe how they squared off last March, writing the majority and dissenting opinions, respectively, in Air & Liquid Systems Corp. v. Devries, No. 17-1104 (6-3 decision rejecting the

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