Thursday, October 10, 2002

Supreme Court A guest commentator at the awesome Goldstein & Howe SCOTUS blog says that predicting Supreme Court outcomes is "a fools' game at best." Unafraid of foolishness, and not taking it personally, I say: Next up for prediction is Sprietsma v. Mercury Marine. The case is about motorboat propeller guards; the plaintiff's wife was killed because the boat didn't have one, and the plaintiff filed a lawsuit under state law for defective design.

States traditionally have the power to make the legal standards governing product safety, whether by regulation or by lawsuits culminating in jury decisions. But the federal government also has the power to set standards over such things, and – by virtue of the Constitution's Supremacy Clause – a federal statute can be written so as to "preempt" (that is, displace) state law on the topic. The Congress can also give a federal agency the power to make the rules in a given area; and state standards can be preempted if they're inconsistent with a federal regulation.

The case gets difficult here, because what we're talking about in this case is not a regulation, but the absence of a regulation requiring propeller guards. The defendant says – and the Illinois Supreme Court agreed – that this absence of a regulation amounted to a considered decision that guards should be optional, such that this decision should preempt a contrary state rule. The plaintiffs say that this wasn't really a considered regulatory decision that propeller guards should be optional, but more like a punt, and so doesn't prevent the states from doing what they think is best for safety. The Solicitor General agrees with the plaintiffs.

So, given that the case comes down to this pretty specific question about the nature of this particular decision/nondecision by federal regulators – and given that the background cynical factors are in a nice equipoise in a case like this (the subconscious "I think that tort lawsuits are out of control, but on the other hand I want to protect state authority against the encroachment of those federal bureaucrats" or "I think that lawsuits about defective products are a great thing, but on the other hand I trust the wise decisions of those able federal regulators") – my working rule here is, "The Solicitor General's Office usually wins, more often than not," and so I'll say REVERSE.

By the way, a look at my competitor at Supreme Court blog (not the Goldstein Howe site; a different one) shows that our predictions are largely the same so far, with the exception of Nextwave and Eldred. You are seeing, in live action before your eyes, the creation of "conventional wisdom" about Supreme Court results.

posted by sam 6:41 AM 0 comments

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