Wednesday round-up

EDITH ROBERTS MAY 22, 2019 7:10 AM

At the NCSL blog, Lisa Soronen looks at Monday’s opinion in Herrera v. Wyoming, in which the court held that “an old treaty allowing Native Americans to hunt on federal land is still valid.” At The Economist’s Democracy in America blog, Steven Mazie writes that “Justice [Neil] Gorsuch’s endorsement of the liberal interpretation gives Herrera added weight and is no surprise: a Coloradan, he came to the Supreme Court from the Tenth Circuit, where he was vigilant on questions of tribal sovereignty.”

This blog’s analysis of Monday’s opinion in Merck Sharp & Dohme v. Albrecht, in which the court held that whether the FDA would not have approved a proposed change to a prescription drug label, pre-empting a state-law claim for failure to warn of the drug’s risks, is a question of law for a judge to decide, comes from Elizabeth McCuskey. At Reuters, Andrew Chung reports that “Monday’s ruling added clarity to a powerful defense employed by drug makers that product liability claims brought under state law are preempted by the actions of a federal agency, because federal law generally trumps state law under the U.S. Constitution[:] Merck argued that it cannot be penalized for failing to issue a warning that the FDA had blocked.”

Ronald Mann analyzes Monday’s opinion in Mission Product Holdings Inc. v. Tempnology LLC, holding that when a debtor in bankruptcy rejects a contract that included a license to use trademarked material, the rejection breaches the contract, rather than rescinding it, so that the other party retains its rights under the license, for this blog. Katy Stech Ferek reports for The Wall Street Journal that “[i]n the ruling, the justices said that while bankruptcy law is designed to help out a financially struggling company, there are limits to that aid.” [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief in support of the petitioner in this case.]

Briefly:

• At SCOTUS OA, Tonja Jacobi and Matthew Sag “continue to examine the role of interruption at oral argument in the 2018 Term,” concluding that “seniority … seems to be an important factor in this Term’s judicial interactions.”
• A Daily Journal podcast focuses on the pending cert petition in Lee v. City of Los Angeles, in which “[c]hallengers claiming Los Angeles City Council District 10 was racially gerrymandered have asked SCOTUS to step in.”
• At The George Washington Law Review’s On the Docket blog, Alan Morrison weighs in last week’s decision in Franchise Tax Board of California v. Hyatt, in which the court overruled a 40-year-old precedent, Nevada v. Hall, and held that a state cannot be sued in the courts of another state without its consent; he argues that “there was no basis to overrule Hall, because that case was both correct and readily distinguishable from this one, and there were other bases for setting aside what the Nevada courts did here.”
• After the court’s refusal on Monday to review a case that asked the justices to revisit the 1950 decision in Feres v. United States, which bars servicemembers from suing the federal government for personal injuries related to their military service, Stephen Vladeck, in an op-ed for The New York Times, urges Congress to overturn the Feres doctrine “in its entirety.”

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