Thank you for the huge amount of time and effort that you put into this. It's a very thorough and compelling analysis. It seems likely that the Fifth Circuit has adopted the same type of "legislating from the bench" to implement its policy preferences that afflicts our current Supreme Court. I highly recommend Professor Steve Vladeck's recent book "The Shadow Docket," which examines this problem in great (and depressing) detail.
Bear in mind, all this is for the purpose of evaluating a motion for a preliminary injunction, requiring that the court assess the prospects for success on the merits. Isn't the court supposed to do this assessment giving due consideration to the further defenses the government might have available? The fifth circuit blithely disregards the prospect that the agency would be able to address the purported shortcomings at trial.
In this respect, the court's failing is even worse than you suggest.
Their bottom line is they’re hiding behind SCOTUS’s temporary block of Kacz’s order, which makes all this somewhat academic--at least until the plaintiffs try to modify it.
In this regard, how long do you you think it will be before plaintiffs run to Brother Clarence to modify the SCOTUS stay to harmonize with this ruling (I.e. block 2016 and later changes)? How long? Not long.
At one point “nation-wide injunctions” were rare. Now they seem common from the more Neanderthal states. WHY should a judge in Podunk Tx be able to control a woman in NY? Whatever happened to “what happens in this Circuit stays in the Circuit” till the Supreme Court decides to choose between conflicting opinions. Isn’t this a case where a Washington court decided the exact opposite of judge K-unpronounceable?
The red states--courts and legislators--seem to feel that science is just great when it produces an iPhone but totally unreliable when the topic is something that offends their religious or political beliefs.
It is probable that the FDA did not do a bunch of things that Mr. Unikowsky cites in his post that they should have done because in their wildest dreams they never thought the Courts would decide against them based on the faulty standing that the Plaintiffs had and the faulty legal logic(?) employed in the 5th Circuit's ruling.
Thanks again for taking the time and trouble to dissect the embarrassment that is the 5th Circuit. You are much more thorough and insightful than anyone writing for the big publications.
Dall-e, on the other hand, should not quit its day job if that's the best sculpture it can do.
I am an engineer, not a lawyer so maybe I am missing something here...
It would seem to me that any prospective plaintiff bringing a potential case to an attorney would have to get over the hurdle of standing before the attorney did any real work. If the attorney fails to establish that the plaintiff has standing, that looks to me like a pretty simple straightforward case of negligence. Once the case makes it to filing it would seem to me that the judge(s) need to agree that plaintiff meets therequirements for standing in order for the case to proceed, and that the defendant's attorney woud either have to agree that plaintiff meets requirements for standing, or fails to make a successful case that plaintiff does not. I would think that three separate attorneys examining plaintiff's claim to standing should get that right virtually every time, and that because that is a fundamental procedural test there should be three analyses of standing, written and part of the record in every civil trial, before the trial begins. How can a trial go to completion and judgement be rendered if that is not so?
I am also an engineer, so take the following with that in mind.
Bear in mind that this case has not actually gone to trial yet--all this extraordinary months-long back and forth so far (including a trip to SCOTUS) pertains to plaintiff's request for a preliminary injunction to reverse FDA approvals in advance of final judgement.
There are, however, written standing arguments already from plaintiffs, defendants, trial judge, initial circuit panel, final circuit panel and multiple amici at 5th circuit, since standing pertains to likelihood of success on the merits which is a criterion for the injunction.
Ah! Another illustration that despite Mr Jefferson's fine words, God has some work to do yet on creating them all equal so there exists a safety mechanism! Thank you.
An inn serves a meal consisting of appetizer, entree, and dessert. For miles around, everyone loves the Inn. Then, the Inn decides to test new garlic mashed potatoes against the old plain mased potatoes. 100% of the folks polled over weeks love the change. The innkeepers also decide to change the pecan pie to apple pie for dessert. Same thing. 100% of the folks love the new finale. By the court's logic, the Inn on the inaugural night of the new menu serves the garlic mashed potatoes and the apple pie, a riot ensues with Yelp 1-star ratings all around, and the Inn boards up the door and closes. The meal was just too horrible to consume. The end.
Thank you for the huge amount of time and effort that you put into this. It's a very thorough and compelling analysis. It seems likely that the Fifth Circuit has adopted the same type of "legislating from the bench" to implement its policy preferences that afflicts our current Supreme Court. I highly recommend Professor Steve Vladeck's recent book "The Shadow Docket," which examines this problem in great (and depressing) detail.
Bear in mind, all this is for the purpose of evaluating a motion for a preliminary injunction, requiring that the court assess the prospects for success on the merits. Isn't the court supposed to do this assessment giving due consideration to the further defenses the government might have available? The fifth circuit blithely disregards the prospect that the agency would be able to address the purported shortcomings at trial.
In this respect, the court's failing is even worse than you suggest.
Their bottom line is they’re hiding behind SCOTUS’s temporary block of Kacz’s order, which makes all this somewhat academic--at least until the plaintiffs try to modify it.
In this regard, how long do you you think it will be before plaintiffs run to Brother Clarence to modify the SCOTUS stay to harmonize with this ruling (I.e. block 2016 and later changes)? How long? Not long.
At one point “nation-wide injunctions” were rare. Now they seem common from the more Neanderthal states. WHY should a judge in Podunk Tx be able to control a woman in NY? Whatever happened to “what happens in this Circuit stays in the Circuit” till the Supreme Court decides to choose between conflicting opinions. Isn’t this a case where a Washington court decided the exact opposite of judge K-unpronounceable?
The red states--courts and legislators--seem to feel that science is just great when it produces an iPhone but totally unreliable when the topic is something that offends their religious or political beliefs.
It is probable that the FDA did not do a bunch of things that Mr. Unikowsky cites in his post that they should have done because in their wildest dreams they never thought the Courts would decide against them based on the faulty standing that the Plaintiffs had and the faulty legal logic(?) employed in the 5th Circuit's ruling.
Thanks again for taking the time and trouble to dissect the embarrassment that is the 5th Circuit. You are much more thorough and insightful than anyone writing for the big publications.
Dall-e, on the other hand, should not quit its day job if that's the best sculpture it can do.
I am an engineer, not a lawyer so maybe I am missing something here...
It would seem to me that any prospective plaintiff bringing a potential case to an attorney would have to get over the hurdle of standing before the attorney did any real work. If the attorney fails to establish that the plaintiff has standing, that looks to me like a pretty simple straightforward case of negligence. Once the case makes it to filing it would seem to me that the judge(s) need to agree that plaintiff meets therequirements for standing in order for the case to proceed, and that the defendant's attorney woud either have to agree that plaintiff meets requirements for standing, or fails to make a successful case that plaintiff does not. I would think that three separate attorneys examining plaintiff's claim to standing should get that right virtually every time, and that because that is a fundamental procedural test there should be three analyses of standing, written and part of the record in every civil trial, before the trial begins. How can a trial go to completion and judgement be rendered if that is not so?
I am also an engineer, so take the following with that in mind.
Bear in mind that this case has not actually gone to trial yet--all this extraordinary months-long back and forth so far (including a trip to SCOTUS) pertains to plaintiff's request for a preliminary injunction to reverse FDA approvals in advance of final judgement.
There are, however, written standing arguments already from plaintiffs, defendants, trial judge, initial circuit panel, final circuit panel and multiple amici at 5th circuit, since standing pertains to likelihood of success on the merits which is a criterion for the injunction.
Ah! Another illustration that despite Mr Jefferson's fine words, God has some work to do yet on creating them all equal so there exists a safety mechanism! Thank you.
An inn serves a meal consisting of appetizer, entree, and dessert. For miles around, everyone loves the Inn. Then, the Inn decides to test new garlic mashed potatoes against the old plain mased potatoes. 100% of the folks polled over weeks love the change. The innkeepers also decide to change the pecan pie to apple pie for dessert. Same thing. 100% of the folks love the new finale. By the court's logic, the Inn on the inaugural night of the new menu serves the garlic mashed potatoes and the apple pie, a riot ensues with Yelp 1-star ratings all around, and the Inn boards up the door and closes. The meal was just too horrible to consume. The end.