44 Comments

Have we crossed the threshold-- in terms of the number of bad-faith arguments, willful misreadings of the record, and flat-out factual lies-- where we can yet say that this opinion is judicial misconduct? Because I am really struggling to see how anything could ever be judicial misconduct if this is not.

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Your discussions on these rulings are outstanding.

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Piling on here, but the juxtaposition of the “First ...” paragraph and the “True...” paragraph is really baffling.

The panel first asserts that whether the REMS requirements could be relaxed safely was “a question not studied by FDA,” but then it acknowledges *in the very next paragraph* that its description of the FDA’s rationale is false. The “True...” paragraph isn’t merely qualifying the “First...” paragraph, or explaining how what the FDA actually did should be regarded as somehow equivalent to the way the panel had just described the FDA’s reasoning. It’s acknowledging that the panel’s description is incorrect, which means the whole “First...” paragraph is just totally inapposite.

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Thank you for this series! As a non-lawyer I am finding it very interesting.

Regarding the Fifth Circuit's assertion that "FDA studied the safety consequences of eliminating one or two of the 2000 Approval’s REMS in isolation," I read that as "one or two changes *at a time*, in isolation from the other changes." Which sounds similar to how you described the FDA's review of the literature.

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thanks, Adam for this again exhaustive analysis - feels like you are clerking for Supremes again!

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Adam, Is it true that your law firm represents Planned Parenthood in this very case? If so, that seems like a potential conflict of interest that should be disclosed in your posts. https://www.nationalreview.com/corner/adam-unikowskys-law-firm-represents-planned-parenthood/

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The cynic in me, which I think is justified, thinks that the S Ct leaves the 5th Cir. injunction in place even though they know they will eventually have to throw the whole thing out down the road. So they get 2 years of restrictions but can just invalidate all of the bad law (like on standing) that would hamper there jurisprudence in other areas.

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Outstanding. Thanks.

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Any guesses what SCOTUS will do

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