NAME: Merck Sharp & Dohme Corp., Petitioner v. Doris Albrecht, et al.
JOINING: Thomas, Ginsburg, Sotomayor, Kagan, Gorsuch
JOINING: Roberts, Kavanaugh
Case CommentarySometimes, the only way not to lose is to never play the game.
As I see it (keeping in mind that not being a Lawyer, much less a Supreme Court Justice, there is no reason to believe I see things clearly):
- The FDA Controls Drug Labelling
- But the Manufacturer Remains Liable for said Label
The FDA might legitimately do this for:
- As too many warnings can cloud the space.
- A belief the benefits outweigh the hazards.
- And as such, harsh warnings that scare potential users away are not desired.
The crux of this case comes down to a very simple formula (or at least, that's how my very simple mind sees it):
- Manufacture Tried to Warn
- FDA Thwarted Efforts
- Workaround is Logically Impossible
The Logically Impossible part is the kicker. A Manufacture can try... but did they try hard enough?
In case you (yourself) need a Warning Label, let me say that I found The Court's Opinion in this particular case to be Incredibly Obtuse and more difficult to decipher than usual. As such, it's more than likely (as in, it's highly likely) my understanding is sub-optimal; and any analysis, incorrect.
I, also, don't like Judges being the decision makers. Yeah, sure in a Perfect World that would be my preference, as it's more efficient. But this isn't a Perfect World. Nowhere close. And defending against bias and corruption are far more important.
As I understand it:
Judges decide Law.
Juries decide Fact.
But then, if The Law is not a subset of Fact, the whole notion of a Rule of Law has been thrown out the window.
I am against ALL Drug Laws: Medical, Recreational, or Religious.
Further, I see no problem with Self-Regulation. I care very little whether the Government says something is Organic, as I know the Government uses a different metric (for almost everything) than I would use. So if I really cared about Organic Food (which I don't, as the government does a passable job of keeping pure poison out of the food-stream), I would select a Private Certificate Authority to declare my food Safe to Eat.
The same thing could be done for Drugs... or pretty much anything.
Finally, at issue is liability for bad outcomes (they happen) when drugs are properly used and prescribed.
I have mixed feelings.
- Caveat Emptor
- Do the Crime! Pay the Fine!
A few weeks after starting my write-ups for this Term Year, I became completely and utterly convinced that I had no solutions for anything.
Almost everything (that I care about, that is the least bit controversial or interesting to write about) has some sort of dualistic quality to it. And that's what makes these topics interesting in the first place.
After all, Judging the Judges isn't about Gravity... it's about Morality, Ethics, and Philosophy: complicated subjects.
Where does an Internal Locus of Control End?
Where does Abusive Behaviour Begin?
They say (or I will, anyhow) that your rights end where my face begins.
But that one is easy.
Try this one on for size, instead.
Where does your exhale end and my inhale begin?
Good luck codifying something like that.
I mean, it's easy if you'll allow that I am Emperor of All; and thus, my breath is all pervasive.
But if you want a Democracy of Equals, it's a conundrum that will never be solved.