Over the last few months, we here at Abnormal Use have corresponded regularly with our friends at the Drug and Device Law blog, most notably Steve McConnell and Jim Beck, about both the law and popular culture. The subject of our conversations inevitably turned to music, a topic held dear by us all. Although our two blogs have previously quibbled on musical issues, we were elated to hear that Steve is a big fan of Bruce Springsteen and the late, great Arthur Lee. We have also learned that Jim Beck has a keen knowledge of The Rolling Stones. Over the course of these many discussions, we decided we would combine our two topics of interest – the law and music – and cobble together a list of songs, both popular and obscure, about the law and lawyers.

Steve and Jim took the first stab at a list, and they were kind enough to give us a sneak preview. Accordingly, armed with the knowledge of the songs they selected, we here decided that we would attempt to expand that list, rather than repeat what they listed. So, we won’t be including tunes like Warren Zevon’s “Lawyers, Guns, and Money” or Jackson Browne’s “Lawyers in Love,” because Steve and Jim beat us to those and several others that come to mind. See here for their thorough and entertaining list that they posted this morning (at the very same moment our post went live), and couple that with our list below. You can then fill your own iTunes library until it’s full with tunes about attorneys, jurisprudence, and the hallowed halls of courthouses.

We’ll start with a list of songs which happen to mention the law or lawyers

AC/DC – “Rock ‘N’ Roll Singer” (“My Daddy was workin‘ 9 to 5 when my Momma was havin‘ me / By the time I was half alive I knew what I was gonna be / I left school and grew my hair / They didn’t understand / They wanted me to be respected as a doctor or a lawyer man/ But I had other plans”)

The Auteurs – “Underground Movies” (“She’s got a credo in underground movies / Her father is a lawyer / Who paid for the fitting and fixtures /And a house with bay windows.”)

B.B. King – “She’s My Baby” (“Hey, she’s my lawyer when I’m in trouble.”)

Beastie Boys – “Car Thief” (“Said good-bye to my girl, my lawyers, and accountants.”)

Belle and Sebastian – “Legal Man” (“Not withstanding provisions of clauses 1, 2, 3, and 4 / Extend contractual period, me and you for evermore.”)

Bob Dylan – “Cry A While” (“I might need a good lawyer, could be a funeral mad trial.”)

Bob Dylan – “Walls of Red Wing” (“Oh, some of us will wind up in St. Cloud prison / And some of us’ll end up to be lawyers and things / And some of us’ll stand to meet you on your crossroads / From inside the grounds of the walls of Red Wing.”)

Bon Jovi – “Blood on Blood” (“Now Bobby, an uptown lawyer Danny, a medicine man / And me, I’m just the singer in a long haired rock ‘n’ roll band / Through the years and miles between us it’s been a long and lonely ride / But if I got that call in the dead of the night, I’d be right by your side.”)

Bruce Springsteen – “Atlantic City” (“The D.A. can’t get no relief.”)

Bryan Adams – “Not Guilty” (“Do I have to prove my innocence? / Don’t need a lawyer with a fat degree / Cause if lovin‘ you is against the law / Then you better lock me up and throw away the key.”)

Camper Van Beethoven – “Good Guys and Bad Guys” (“Well there are good guys and there are bad guys / And there are crooks and criminals / There are doctors and there are lawyers / And there are folks like you and me.”)

Carly Simon – “Coming to Get You” (“Lovers and lawyers in Arkansas / Laid down the law.”)

Chuck Berry – “Brown Eyed Handsome Man” (“Arrested on charges of unemployment / He was sitting in the witness stand / The judge’s wife called up the district attorney / Said you free that brown eyed man / You want your job you better free that brown eyed man.”)

Chuck Brodsky – “Talk to My Lawyer” (“I was walking outside of City Hall – I slipped and I had a terrible fall / It was negligence on the part of I don’t care who / I fell so hard I was seeing stars / Dollar signs and men from Mars / And the man who helped me up said I ought to sue / He was a lawyer, he was all out of breath.”)

The Clash – “Guns on the Roof” (“Sue the lawyers and burn all the papers / Unlock the key of the legal papers / A jury of a billion faces / Shouted out condemned out of hand.”)

The Clash – “Midnight Log” (“Cooking up the books / A respected occupation / The anchor and foundation of multi-corporations / They don’t believe in crime / They don’t know that it exists / But to understand / What’s right and wrong / The lawyers work in shifts.”)

The Coral – “Liezah” (“So, lawyers doctors please beware of that girl with wavy hair / She will cut you down to size / Reveal the truth behind your disguise.”)

Creed – “My Own Prison” (“A court is in session / A verdict is in / No appeal on the docket today / Just my own sin.”)

Dance Hall Crashers – “Sue Us” (“I heard you had a mind to sue / Why I don’t know? / I guess your lawyers will tell us.”)

Dave Frishberg – “My Attorney Bernie” (“I’m impressed with my attorney Bernie / I’m impressed with his influential friends.”)

David Bowie – “I Have Not Been to Oxford” (“And the prison priests are decent / My attorney seems sincere / I fear my days are numbered / Lord, get me out of here.”)

Dead Kennedys – “When Ya Get Drafted” (“If you can’t afford a slick attorney we might make you a spy.”)

Dire Straits – “Telegraph Road” (“Then came the lawyers, then came the rules.”)

Don Henley – “The End of the Innocence” (“The lawyers clean up all details / since daddy had to lie.”)

Don Henley – “Garden of Allah” (“Today I made and appearance downtown / I am an expert witness, because I say I am / And I said, “Gentleman, and I use that word loosely, I will testify for you, I’m a gun for hire, I’m a saint, I’m a liar Because there are no facts, no truth, just data to be manipulated, I can get you any result you like / What’s it worth to you?”)

The Eagles – “Get Over It” (“Let’s kill all the lawyers, kill ’em tonight.”)

The Eurythmics – “Sisters Are Doin‘ It For Themselves” (“We got doctors, lawyers, and politicians, too.”)

Fishbone – “Ma and Pa” (“Well, there’s a lot of money / For all the attorneys.”)

Fountains of Wayne – “California Sex Lawyer” (“I’ve got a license to love.”)

Frank Zappa – “Brown Shoes Don’t Make It” (“Gotta meet the Guerneys and a dozen gray attorneys.”)

Frank Zappa – “Heavenly Bank Account” (“He says the grace while the lawyers chew.”)

Geoff Berner – “My Dad’s A Lawyer” (“It’s a privilege to announce my dad’s a lawyer.”)

George Harrison – “Sue Me, Sue You Blues” (“Bring your lawyer, and I’ll bring mine / Get together, we could have a bad time.”)

George Harrison – “Wreck of the Hesperus” (“I’m not a power of attorney / But I can rock as good as Gibraltar.”)

Guns N’ Roses – “You Could Be Mine” (“Don’t forget to call my lawyers with ridiculous demands.”)

Jewel – “Who Will Save Your Soul” (” . . . [A]nother lawyer’s bill . . .”)

Kitty Wells – “Will your Lawyer Talk to God” (“Your lawyer called and said he had the papers all prepared / To sign my name was all I had to do / He saw the judge, now he seen me, there’s only one thing left / Will your lawyer talk to God for you?”)

Lou Reed – “Dirty Blvd.” (“Where’s the proof, man? Let me speak to my attorney.”)

Mojo Nixon – “Destroy All Lawyers” (There’s a plague on the planet, and they went to law school.”)

Neil Young – “Sixty to Zero” (“There’s a judge in the city / He goes to work every day / Spends his life in the courthouse / Keeps his perspective that way.”)

Neil Young – “Drivin‘ Thunder” (“I stopped into the courthouse / I had to pay some bills / Got talking with the judge / About the finer points of my driving skills.”)

Panic at the Disco – “Build God, Then We’ll Talk” (“The missus will stay with the cheating attorney.”)

Pink Floyd – “The Trial” (“The evidence before the court is incontrovertible / There’s no need for the jury to retire / In all my years of judging I have never heard before / Of someone more deserving the full penalty of law.”)

The Pogues – “Repeal of the Licensing Laws” (Instrumental)

R.E.M. – “Can’t Get There From Here” (“Lawyer Jeff he knows the lowdown.”)

The Roots – “Table of Contents (Parts 1 & 2)” (“Cutting through like attorneys at law that’s car chasin‘.”)

Todd Rundgren – “Lord Chancellor’s Nightmare Song” (“And bound on that journey you find your attorney.”)

Tom Paxton – “One Million Lawyers” (“In ten years we’re gonna have one million lawyers / How much can a poor nation stand?”)

A Tribe Called Quest – “Show Business” (“Get a good lawyer, so problems won’t pile.”)Tom Petty – “Accused of Love” (“Well, the attorney grins / The witness is drug in / With his face half hid in the shadow / Sworn to God and state, the truth arrives too late / and defense goes out the window”)

Warren Zevon – “Mr. Bad Example” (“Of course I went to law school and took a law degree / and counseled all my clients to plead insanity.”)

Weezer – “Jamie” (“Jamie, believe me, I won’t let you down / Cuz you are the best lawyer in town.”)

Willie Nelson – “Mama, Don’t Let Your Babies Grow Up To Be Cowboys” (“Make ’em be doctors and lawyers and such.”)

As noted in the Drug and Device Law blog’s post, many law songs mention the criminal process. Here’s a brief list of some other such songs we identified:

10 CC – “Good Morning, Judge” (“Well, good morning Judge / How are you today ? / I’m in trouble please put me away.”)

Black Flag – “Police Story” (“I go to court for my crime / Stand in line, pay bail / I may serve time.”)

Bruce Springsteen – “Johnny 99” (“Well your honor I do believe I’d be better off dead / And if you can take a man’s life for the thoughts that’s in his head / Then won’t you sit back in that chair and think it over judge one more time / And let ’em shave off my hair and put me on that execution line.”)

Bruce Springsteen – “Highway Patrolmen” (“My name is Joe Roberts I work for the state / I’m a sergeant out of Perrineville barracks number 8.”)

Bruce Springsteen – “State Trooper” (“Mister state trooper, please don’t stop me . . . .”)

Bukka White – “District Attorney Blues” (“A District Attorney sho‘ is hard on a man / He taken me from my woman / Cause her to love some other man / District Attorney sho‘ is hard on a man / He will take a woman’s man and leave her cold in hand.”)

The Clash – “Know Your Rights” (“You have the right to remain silent / You are warned that anything you say can and will be taken down and used as evidence against you.”)

Elvis Costello – “I Stand Accused” (“Girl, I stand accused / People say I love you / Yeah, I stand accused / Oh, but what can I do? / You belong to some other guy / Hope I never have to testify / If loving you is a big crime / I’ve been guilty a long time.”)

Fiona Apple – “Criminal” (“What I need is a good defense ’cause I’m feeling like a criminal.”)

Furry Lewis – “Judge Boushay Blues” (“Good morning judge, what may be my fine?”)

Joe Perry Project – “Never Wanna Stop” (“Judge and the jury and the district attorney / Gonna try to put my ass in jail.”)

Johnny Cash – “Hung My Head” (“Here in the court house / The whole town was there / I see the judge / High up in the chair / Explain to the court room / What went through your mind / And we’ll ask the jury / What verdict they find.”)

The Kingston Trio – “Bad Man’s Blunder” (“The judge and the jury, they did agree. They all said murder in the first degree. The judge said, saying: I don’t know whether to hang you or not, but this here killin‘ of deputy sheriffs, just naturally got to stop!” (“You’ve got a point there, judge!”)

The Kingston Trio – “Tom Dooley” (“This time tomorrow / Reckon where I’ll be Down in some lonesome valley / Hangin‘ from a white oak tree.”)

LL Cool J – “Illegal Search” (“I got cash and real attorneys on the case.”)

Metallica – “And Justice for All” (“Halls of justice, painted green / Money talking, Power wolves beset your door / Hear them stalking.”)

Morrissey – “I’ve Changed My Plea To Guilty” (“I’ve changed my plea to guilty / Because freedom is wasted on me.”)

The Specials – “Stupid Marriage” (“Court in session. What do you mean ‘Oy, oy, oy‘? Must have court in session. Order. My name is Judge Roughneck, And I will not tolerate any disobedience in my courtroom. Rude boy, you have been brought in Front of me and charged with smashing this woman’s window. Before I sentence you, What have you got to say in your defense?”)

Was Not Was – “Dad, I’m in Jail” (“Say hi to mom / From jail!”)

We also located a few songs about family law (although we suspect there are many more):

Tammy Wynette – “D-I-V-O-R-C-E” (“Our D-I-V-O-R-C-E becomes final today.”).

Steely Dan – “Haitian Divorce” (“This is your Haitian divorce.”).

Weird Al Yankovic – “Alimony” (“Lawyer’s callin‘ me on the telephony / Tryin‘ to squeeze some blood from a stony, stony.”)

There aren’t too many songs about products liability. However, we did manage to come up with a few songs that at least sound like they might be about that type of litigation:

Alice in Chains – “Angry Chair”

Beck – “Broken Drum”

Belle X1 – “The Ribs of A Broken Umbrella

Built to Spill – “Broken Chairs”

As for bands that just might have named themselves after products liability issues, what about Dangerous Toys?

Keeping in mind their beat, the folks at the Drug and Device Law blog also came up with a list of songs about drugs. Well, as they note, way too many rock songs are about drugs, but there are some at least that sound like they might be about the the prescription medication industry:

Candlebox – “Happy Pills”

Eels – “Novocaine for the Soul”

Entrance – “Valium Blues”

Fugazi – “Give Me The Cure”

Morphine – “Cure for Pain”

Neil Young – “The Needle and the Damage Done”

New York Dolls – “Pills”

Pink Floyd – “Comfortably Numb”

Ramones – “I Wanna Be Sedated”

U2 – “Miracle Drug”

The Velvet Underground – “I’m Waiting for the Man”

The Verve – “The Drugs Don’t Work”

Let’s not forget the Alanis Morissette’s album Jagged Little Pill, either, or the rock groups named Codeine and Ted Leo and the Pharmacists. And, of course, if you’re looking for band names that sounds related to the pharmaceutical industry, what about The Cure?

Back in the halcyon days of the 1980s, we encountered one cassette tape of popular music actually produced by a major pharmaceutical company. We had to dig through our forlorn box of old cassettes, but we did manage to find it, and here’s an image of the cassette’s cover:

A joint production of Smith, Kline, and French (now a part of GlaxoSmithKline) and Capitol Records, the 1985 cassette celebrated the twentieth anniversary of the release of the prescription drug Dyazide. In so doing, the release included a number of songs from 1965. We’ve scoured the Internet for information on this release and found little, if anything. So, in the interests of posterity, we present you the track list of songs from 1965 included thereon:

SIDE ONE

1. Beach Boys – “California Girls”
2. Cher – “All I Really Want to Do”
3. The Seekers – “Another You”
4. Mel Carter – “Hold Me, Thrill Me, Kiss Me”
5. Gary Lewis and the Playboys – “This Diamond Ring”

SIDE TWO

1. Jackie DeShannon – “What The World Needs Now”
2. The Beach Boys – “Help Me, Rhonda”
3. The Lettermen – “Theme from ‘A Summer Place'”
4. Freddie and the Dreamers – “I’m Telling You Now”
5. Al Martino – “Spanish Eyes”

While on the subject of lawyers and music, we would be quite remiss if we did not mention The Honorable Stephen S. Trott, a justice of the U.S. Court of Appeals for the Ninth Circuit, who was a member of the folk group The Highwaymen in the late 50s early 60s.

Further, we must note that although our friends at the Drug and Device Law blog did include “I Fought The Law” (originally by the Bobby Fuller Four, later covered by The Clash) on their list, they neglected to mention the subsequent covers by The Dead Kennedys, Green Day, Unknown Hinson, and Bell X1 (only some of which are worth a listen). We’ll forgive them that.

Finally, dear readers, if you’ve noticed that a song is missing from either our list or that of the Drug and Device Law blog, please feel free to leave us a comment with the omitted song(s). We’re sure we’ve missed many, many others. Also, if you happen to be a law blogger yourself, we encourage you to write your own post with your own list of songs we missed (or even a Top 10 list of your all time favorite songs that mention the law or lawyers).

• Superman is identified as a murderer by a child witness on the cover of Superman Supacomic #115, depicted above and published way back in 1969. There are a few problems with this scene, of course, including the fact that the child witness cannot be testifying if Superman is in the witness stand himself. Further, aren’t there all sorts of laws that seek to protect child witnesses? The inconsistencies may be explained by the fact that this series – containing reprints of American Superman titles – was actually published in Australia. But, in the end, this is a fun cover, as we see not only the judge and members of the jury, but also the court reporter dutifully transcribing the proceedings.
• As you know, we here at Abnormal Use love Twitter, and we follow many, many legal personalities thereon. However, we must direct your attention to @SCBarrister, a brand new legal parody account which emerged last week. It’s quite funny. Think of it as the South Carolina Twitter version of the old Anonymous Lawyer blog.
• Best legal headline of the week? It’s got to be “Zoo sea lions face legal hurdle” from last Saturday’s issue of The State. Let’s hope the sea lions aren’t pro se.
• Earlier this week, we interviewed the two authors of the funny and clever Law and the Multiverse blog. Friend of the blog Alberto Bernabe, who runs the Professional Responsibility blog, recently commented upon one of their posts in his own piece, entitled “Did She-Hulk violate the rules against solicitation of clients?” Of course, Bernabe didn’t do a post when we mentioned She-Hulk’s legal career. Alas.
• You’ve got to give Colin Miller of the EvidenceProf Blog some props for his Radiohead reference in his post entitled “(Not) OK Computer: Supreme Court of Georgia Finds Computer Printout Not an Original or Duplicate for Best Evidence Purposes.” We’ve been trying to work Radiohead references into our posts for the past fourteen months, but as of yet, we’ve been unsuccessful.

JAMES: My wife and I were having dinner with some friends and the subject turned to Superman’s X-ray vision and whether privacy rights on Krypton might be very different. One of our friends suggested that this kind of thing might make for a good blog, which I was a bit skeptical of at first. I thought about it for a few days and wrote up the first few articles, then I posted about the blog on the personal projects section of MetaFilter, a kind of shared blog that Ryan and I are members of. I’ve been a member of MetaFilter since 2005, and it’s a fairly close community with a strong emphasis on member contributions. So I think what really prompted me to start the blog was a desire to contribute something interesting to that community, although I had no idea it would be so well received.

After the post to MetaFilter, Ryan immediately responded with an offer of collaboration, and so he was involved almost from the very beginning. We’ve both been pleasantly surprised by the positive reception the blog has received every step of the way.

JAMES AND RYAN: Relatively few comic books depict the legal process beyond villains being arrested by police after the superheroes do their thing. But what depictions there are hold up pretty well, especially considering most (if not all) comics are written by non-lawyers. The stories that have courtroom scenes usually don’t have any glaring technical errors, even if they don’t show a lot of detail. On the whole, most modern comic book courtroom scenes are on par with the depiction of court scenes in TV shows and movies.

That being said, comic book stories containing plot elements that are significantly legally problematic show up with some regularity, e.g. nobody ever seems to pay taxes or get audited. Some of that is excusable given the common genre trope of not showing boring details—no one ever seems to go to the bathroom either—and warrantless searches and arrests are so commonplace in comic books that it would be kind of surprising if they *didn’t* show up.

But we do occasionally see things that simply don’t work. For example, the criminal law definition of “insanity” isn’t represented in comic books very well. The Joker may be emotionally unbalanced, even to the point of meriting involuntary commitment, but he does not appear to be insane in a way that would excuse him from criminal liability. Similarly, maintaining a secret identity without government support is reasonably difficult even over the short term, and the problems get even worse for abnormally long-lived characters like Wolverine or R’as al Ghul. But again, the few times that comic books do explicitly deal with legal situations, they do fairly well.

JAMES: In one of the Manhunter comics, Manhunter’s alter ego, Kate Spencer, who is a criminal defense attorney, is at a grand jury hearing. The comic book mentions that the proceedings are sealed and that as a representative for the defense Kate is only there as a courtesy and can’t object to anything. I was very pleasantly surprised by the mention of those technical but important details. So that stands out in my mind.

RYAN: I find that the very early Iron Man comics (i.e. the mid-1960s), Tony Stark actually ran into significant difficulties switching between the Iron Man and Stark personae. It’s one of the few times that a superhero seems to have been bothered by the masquerade beyond mere fear of discovery; Stark started to have money problems. It’s one of the reasons he took off the mask, as it were: maintaining the double life was simply too difficult given the highly public life of Tony Stark.

JAMES: My favorite issues have been the ones closest to my day job, which is focused on intellectual property. Posts like “Batman and Patents” and the “Superpowered Merchandising” series are my favorites. I did really enjoy writing the recent post on legal ethics, though, since I don’t think the writer realized that the character was committing an ethical breach (improper in-person solicitation), and I don’t think many readers would realize it either. I enjoyed the opportunity to inform people about the ethical standards for attorneys, especially since this is an issue that they might encounter in their own lives.

RYAN: I’ve enjoyed the more historical topics, so outlawry, the non-human intelligence series, and the posts touching on immortality have been especially fun to write.

Today, Abnormal Use continues its series, “Abnormal Interviews,” in which this site will conduct interviews with law professors, practitioners, and other commentators in the field. For the latest installment, we turn to New York University law professor Catherine Sharkey, who has dedicated a great amount of study to federal preemption. With the U.S. Supreme Court recent preemption jurisprudence, we thought the best person to interview was Professor Sharkey, who was kind enough to give us her thoughts on those new cases. The interview, beginning with a preliminary summary of the opinions authored by Professor Sharkey, is as follows:

The last full week of February was a big week for federal preemption at the U.S. Supreme Court. On Tuesday of that week, the Court handed down Bruesewitz v. Wyeth, a 6-2 pro-preemption decision holding that the National Childhood Vaccine Injury Act preempts all design-defect claims against vaccine manufacturers brought by plaintiffs seeking compensation for injury or death caused by vaccine side effects. And the next day, on Wednesday, the Court followed with Williamson v. Mazda Motor of America, Inc., an 8-0 anti-preemption decision holding that the National Traffic and Motor Vehicle Safety Act of 1966 and Federal Motor Vehicle Safety Standard 208, which gave manufacturers a choice of installing either lap belts or lap-and-shoulder belts on rear inner seats of passenger vehicles, do not preempt state tort lawsuits premised on the manufacturer’s failure to install lap-and-shoulder belts.

1. Were the results in these cases a surprise to you?

No, I predicted both the pro-preemption result in Bruesewitz and the anti-preemption result in Williamson. This Supreme Court tends to interpret express preemption provisions, such as the one at issue in Bruesewitz, broadly, whereas the Court has narrowed the scope of implied preemption, as was at issue in Williamson. However, the Court’s 8-0 line-up in Williamson came as a complete surprise. Not only do the Court’s implied preemption cases tend to be hotly contested (such as the 6-3 decision in 2009 in Wyeth v. Levine, the case holding that FDA approval of a pharmaceutical drug did not preempt state tort lawsuits), but Chief Justice Roberts and Justices Scalia and Alito (dissenters in the Levine case) had signaled their embrace of a broad interpretation of implied preemption, at least in highly regulated areas such as pharmaceuticals (and by extension, automobiles). One might have reasonably predicted these three to have dissented in Williamson. (In hindsight, a key difference may be the presence of an express savings clause in the Motor Vehicle Safety Act, which is absent in the Food Drug and Cosmetic Act).

2. In a previous 2000 case, Geier v. American Honda Motor Co., the Court held that the very same statute and federal regulation at issue in Williamson did preempt a state tort lawsuit that would effectively remove a manufacturer option, in that case airbags as opposed to other passive restraints. Can Williamson be reconciled with Geier?

Justice Breyer wrote the majority opinions in both Geier and Williamson (although Geier divided the Court 5 to 4). There are some striking similarities between the two cases. First, the same statute and federal regulation were at issue. Second, the federal regulation provided manufacturers with options in each case: the choice to install airbags or other restraints in Geier; the choice to install a lap or lap-and-shoulder belt in Williamson. And, in each, plaintiffs brought a state tort lawsuit premised on the manufacturer’s failure to install a particular option: airbags in Geier and lap-and-shoulder belt in Williamson. Justice Breyer in fact conceded “the history of the regulation before us [in Williamson] resembles the history or airbags to some degree.” So, what was different? According to Justice Breyer, “unlike Geier, we do not believe here that choice is a significant regulatory objective.” He based this conclusion on “the agency’s contemporaneous explanation, and its consistently held interpretive views.” The majority, in other words, interrogated the reasons behind the agency action to probe whether providing manufacturers with options was a “significant regulatory objective.”

Justice Thomas, however, was not convinced. Not mincing words, he charged: “That the Court in Geier reached an opposite conclusion reveals the utterly unconstrained nature of purposes-and-objectives pre–emption.”

3. Going forward, how might courts discern whether a particular federal regulation embodies a “significant regulatory objective” that conflicts with a state tort lawsuit?

Following Williamson, courts will closely examine the federal regulation, including its history, the promulgating agency’s contemporaneous explanation of its objectives, and the agency’s current views of the regulation’s preemptive effect.

Here, again, Justice Thomas was highly skeptical. He dismisses the majority’s approach as resting, at its core, on some form of “‘psychoanalysis’ of the regulators.” And he notes with chagrin that courts must henceforth “sift[] through the Federal Register, examin[e] agency ruminations, and ask[] the Government what it currently thinks.”

4. What about the presumption against preemption?

Surprisingly, the presumption was never discussed in Williamson and it surfaced only in a single footnote of Justice Sotomayor’s dissent in Bruesewitz, more as an aside. The presumption hardly lives up to its reputation as a pillar of the Court’s preemption framework. To my mind, all along, the presumption has been deployed by the Court in a haphazard way—rearing its head in some cases, while remaining utterly silent in others (including the majority in Geier, as pointed out with vitriol by the dissent). While many scholars continue to see it as the linchpin of an analytic preemption framework, I have long argued that it rests on extremely weak empirical and theoretical foundations.

5. In light of all of the new opinions, what is the analytic framework for preemption decisionmaking?

The role played by the underlying regulatory agency has been underappreciated in preemption cases. Even in Bruesewitz, an express preemption case authored by Justice Scalia, the most loyal adherent to textualist statutory interpretation, the majority nonetheless looks to the regulatory framework for vaccines for additional support for its holding that the Vaccine Act preempts design defect claims. The majority points to the role of the Secretary of Health and Human Services (HHS) in prompting the development of improved vaccine design and post-approval monitoring by various federal agencies. Justice Breyer, who places even more weight on the views of HHS (as expressed through the government’s amicus brief), was convinced that the “rigorous administrative safety review” of vaccines and HHS’s thorough understanding of vaccine production and safety was sufficient to read the Vaccine Act as preempting state tort design defect claims.

Williamson brings this approach front and center, with its emphasis on the regulating agency’s views both at the time the regulation is promulgated and at the time the case is before the Court. The majority reiterated its statement in Geier that “the agency’s own views should make a difference.” But, at the same time, the Court does not simply defer to the agency’s obiter dictum. For example, “the fact that DOT [Department of Transportation] made a negative judgment about cost effectiveness . . . cannot by itself show that DOT sought to forbid common-law tort suits in which a judge or jury might reach a different conclusion.” More would be needed form the rulemaking record to substantiate the agency’s intent to preempt. The agency’s views, moreover, will be deemed worthy of consideration only to the extent that they are “consistently held interpretive views.”

In my own work, I have proposed an “agency reference model” to guide judicial preemption decisions. Williamson is a significant step in this direction. And it is particularly momentous in that seven Justices seem to have signed on to this approach. (Again, Justice Thomas notes his strong objection to what he views as “[t]he Court wad[ing] into a sea of agency musings and Government litigating positions and fish[ing] for what the agency may have been thinking 20 years ago when it drafted the relevant provision.”) But more is needed to guard against agency political flip-flop with each Administration’s change of view on implied preemption and state tort law. The next step is to articulate the level of deference to accord to agency positions on preemption and to specify the heightened judicial scrutiny of the agency’s regulatory record that supports its position.

BIOGRAPHY: Catherine Sharkey is Professor of Law at New York University School of Law. She is one of the nation’s leading authorities on federal preemption in the realm of products liability. Professor Sharkey has published more than twenty-five law review articles, essays, reviews, and book chapters in the fields of preemption, punitive damages, administrative law, mass torts, class actions, and empirical legal studies. Her scholarship has been cited by numerous federal appellate and trial courts. Professor Sharkey will join Professor Richard Epstein as co-author of one of the leading torts casebooks and is co-editor with Professor Saul Levmore of the second edition of Foundations of Tort Law. She also serves as a consultant to the Administrative Conference of the United States. Professor Sharkey earned a bachelor’s degree in economics, summa cum laude, from Yale University. A Rhodes Scholar, she received a master of science in economics for development, with distinction, from Oxford University (Magdalen College), and her J.D. from Yale Law School, where she was Executive Editor of the Yale Law Journal. She clerked for Judge Guido Calabresi of the U.S. Court of Appeals for the Second Circuit and Justice David Souter of the U.S. Supreme Court.

As our regular readers know all too well, we here at Abnormal Use typically adorn our weekly Friday Links posts with legal themed comic books covers. Today, of course, shall be no exception, as we feature the covers of issues #2 and #3 of the NCSC Justice Case Files. However, we must confess that we, as well as our firm of Gallivan, White, & Boyd, P.A., played a role in distributing these comic books to schoolchildren across South Carolina to better acquaint them with the legal process. That’s right, dear readers! We’re now comic book distributors!

Well, kind of.

The comics themselves are actually the brainchild of the National Center for State Courts (NCSC), which sought to advance civics education by creating the three issues, all of which address legal topics in an attempt to educate the public. Our firm, along with another South Carolina firm, purchased more than 3,000 of the comics books to donate to South Carolina teachers. Apparently, they’re a hot property, as 65 schools requested them for their students.

So, now we here are now just bloggers, we’re in the comics industry! Who knows what will be next? Perhaps DC Comics will now ask us to write a few issues of Batman?

(Side note: Don’t you think the guy holding his hand to his heart on the cover of issue #3 – depicted below – looks a lot like Dwight Schrute?)

See here for our official press release on this project.

• Back in the 1980s, The Flash was put on trial for the murder of Professor Zoom, a villain also known as the Reverse Flash. Above, you’ll see the cover of The Flash #347, published back in 1985, which features the faces of the twelve members of the jury called upon to weigh the evidence against the hero. (We wonder how that voir dire was conducted.). Below, at the end of this post, you’ll find the cover of The Flash #348, which features the verdict rendered by that jury. Let’s just say it did not go well for The Flash.
• You’re likely aware that the U.S. Supreme Court issued not one, but two, opinions on preemption this week (one on express preemption in the vaccine context, another on implied preemption in the automotive industry context). We here at Abnormal Use are preparing are own post(s) on those cases, but in the mean time, please check out the coverage and analysis by our friends at the Drug and Device Law Blog here and here.
• Trademark lawyers might be interested in this post at the Reverb blog, published by Seattle Weekly, detailing four Pacific Northwest local bands that share a name with national acts. I guess this means we here cannot call our musical side project Arcade Fire or Nirvana. Alas.
• We must offer our congratulations to Jeff Richardson of the iPhone J.D. blog, whose site just celebrated its one millionth page view. We’d like to say we were trailing him and approaching that number ourselves, but unfortunately, we aren’t quite there yet.
• Lawyerist has a must-read post entitled “How Lawyers Can Protect Against Wi-Fi Security Risks.” An important topic, particularly if you are using an unsecured wi-fi network while on the road. As always, beware of such things.

5 U.S.C.A. § 6103(a) sets forth that today, the third Monday in February, is Washington’s Birthday, and thus, a legal public holiday. George Washington was born on February 21, 1732 (although confusingly, under the old calendar in effect at the time of his birth, he was actually born on February 11, 1731). Perhaps that’s an issue that will be litigated someday.

We’re big fans of George Washington, him being the father of our country and all. Above, you’ll find the cover of Ha Ha Comics #51, published way back in March of 1948, which celebrates the occasion with enthusiasm and aplomb.

Have a swell holiday, but try to avoid the 1776 musical, if you can.

• “No, no! I’ll tell all!” screams the apparent criminal defendant in the comic book cover above, that of Badge of Justice #4, published way back in 1955. The gavel comes down, leading us to wonder what “baffling adventures” take place within the issue, which cost only 10 cents at the time of publication. This cover, certainly, depicts a much more realistic and hard-boiled version of the criminal justice system than our usual superhero books.
• Plaintiff’s lawyer Bill Marler of The Marler Blog, asks: “What do Lady Gaga, food poisoning and the White House have in common?” A good question, that.
• We’ve cited to The Word Spy before (here and here), and we couldn’t resist linking its entry for Googleganger, defined as “[a] person who has the same name as you, and whose online references are mixed in with yours when you run a Google search on your name.” We here at Abnormal Use have certainly run into our own Googlegangers before, an experience which prompted existential crises, to be certain.
• The Constitutional Law Prof Blog writes about South Carolina Senate Bill 500, which calls for an analysis into whether our fair state should adopt its own currency. We’re for that if our logo would go on the new South Carolina quarter, but against it if it will not.
• The Rainmaker Blog, in a post entitled “Social Media for Attorneys: Brave New World or Business as Usual?,” posts an image of a lawyer advertisement originally published in the Indianapolis Gazette in 1822. My, how times have changed. Or have they?
• We learn from this piece at Stereogum that former Smashing Pumpkins bassist D’arcy Wretzky is facing her own set of legal troubles. Yikes.
• We’re always on the lookout for blog posts on law schools in North and South Carolina, that being our region and all. The Business Law Prof Blog notes that the Charleston School of Law is now seeking visiting profs. Meanwhile, The Constitutional Law Prof Blog reports on a Campbell Law Review Symposium entitled “Liberalism, Constitutionalism, and Christianity: Perspectives on the Influence of Christianity on Classical Liberal Legal Thought.” Campbell, of course, recently relocated its campus to Raleigh, NC.

We’re of two minds on this particular occasion, the greeting card holiday known as Valentine’s Day. On the one hand, we feel that we should recognize all of the people out there who will find time today to recognize their love for one another. After all, there’s something to that, we suppose. So, for them, we feature the comic book cover above, that of Marvel Valentine Special #1, published back in the halcyon days of 1997. However, we recognize that the super majority of our readership here is comprised of lawyers, all of whom are extraordinarily cynical by nature. Surely, they are unappreciative of holidays premised upon sincere and genuine human emotions. So, for them, we include the cover below, that of Forbidden Worlds #24, published back in 1953. That one may be a bit more their speed, particularly the litigators. Oh, well.

All kidding aside, we wish our readers a happy Valentine’s Day today.

• The comic book cover above is that of Star Spangled Comics #10, published way back in 1942. Depicted are The Guardian, sitting a bit too casually in the jury box, and members of the Newsboy Legion, who appear to be conducting a criminal prosecution of sorts. Meanwhile, someone at counsel’s table seems to be drafting the confession of Nick Cappa, the apparent villain of the story, although it’s unclear from the cover whether Cappa is the defendant standing trial. The presiding judge, who is apparently rather lenient on courtroom decorum, looks eerily like Clark Kent, doesn’t he?
• We just realized that this month marks the twentieth anniversary of the publication of John Grisham’s novel, The Firm, which according to Wikipedia, was first published on February 1, 1991. The popular film based on the novel, directed by the late, great Sydney Pollack and starring Tom Cruise, was released two years later in June of 1993.
• RockAAA.com, not an insurance website, asks “Is your download collection insured?” Good question. What happens if you lose both your desktop computer and any external hard drive back up due to some type of accident? We here would be crestfallen. That article, published last November, just recently came to our attention, and notes that most insurance policies in the United Kingdom do not cover downloaded media.
• The Faculty Lounge has a brief post – with links to candidate bios – regarding the five finalists for the dean position at the University of South Carolina law school.
• Alan H. Crede at the Boston Personal Injury Lawyer Blog authors this post entitled “CPSC May Mandate Flesh Detection in Table Saws: Is It a Good Idea?” An issue to monitor, that.
• Our own Jim Dedman takes a break for law blogging to review the new album by David Lowery, the former frontman of such bands as Cracker and Camper Van Beethoven. See his thoughts here at the Dead Journalist blog, a music site out of Atlanta.