WSJ: Tres sentencias del Supremo invalidan diposiciones estatales

El Tribunal Supremo de los Estados Unidos dictó sentencia en los procesos Riegel v. Medtronic Inc., Rowe v. New Hampshire Motor Transp. Assn. y Preston v. Ferrer. En todos estos casos invalidó disposiciones de leyes estatales.


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High Court Overrules 3 State Laws

Justices Back Congress
As Dominant Regulator
Of Interstate Commerce

By JESS BRAVIN
February 21, 2008; Page A8

WASHINGTON -- The Supreme Court delivered three opinions yesterday that set aside state laws, underscoring the dominant role of Congress in regulating commerce among states.

The rulings involved three different states and dealt with unrelated issues: product liability in New York for a faulty medical device, Maine's attempt to keep cigarettes from minors and a California law aimed at protecting star-struck Hollywood hopefuls from unscrupulous talent agents. In each case and by votes unanimous -- or nearly so -- the justices made clear that federal power is to be read broadly, with state authority surviving only when Congress explicitly permits it a role.

FEDERAL POWERS

• The News: The Supreme Court set aside state laws as it ruled on three cases dealing with unrelated issues -- product liability, selling cigarettes to minors and contract arbitration.
• The Bottom Line: In unanimous, or nearly unanimous decisions, the court made clear that federal power is to be read broadly, with state authority surviving only when Congress explicitly permits it a role.

The medical-device case may have the widest impact, because of the high-profile nature of medical-liability cases. The question at issue was whether traditional private-product lawsuits, as well as state regulations, may be pre-empted by federal law.

After a catheter ruptured during angioplasty, the patient and his wife sued the manufacturer, Medtronic Inc. Lower courts in New York dismissed the suit, finding that a 1976 law immunized Minneapolis-based Medtronic, because its catheter had been approved for sale by the Food and Drug Administration.

Writing for an 8-1 court, Justice Antonin Scalia noted that Congress acted after a slew of medical-device failures, and decided it would be better to have a single national standard instead of varying state laws. Justice Scalia added that states remained free to permit private lawsuits "for claims premised on a violation of FDA regulations."

In dissent, Justice Ruth Bader Ginsburg wrote that the 1976 law was intended to add to consumer protections under existing state product-liability laws, not to replace them. (Riegel v. Medtronic Inc.)

The Maine case involved a different kind of health question -- that of keeping cigarettes from minors. Concerned that youngsters could evade proof-of-age rules by ordering cigarettes online, the state adopted a law requiring shipping companies delivering cigarettes to verify the recipient's identity and age.

Maine said its law wasn't intended to displace federal law regulating private shippers, but rather to protect public health -- and noted that Congress itself had pushed states to discourage youth smoking. A trade group representing delivery companies complained that Maine's requirements were costly, burdensome and contrary to a 1994 federal law that pre-empted state trucking regulations.

MORE

• Split Decisions: Cases That Have Divided the Court¹

The Supreme Court unanimously agreed. The opinion, by Justice Stephen Breyer, said the Maine law "produces the very effect that the federal law sought to avoid, namely a State's direct substitution of its own governmental commands for 'competitive market forces.'" Congress had created no exception for "public health," and since the term "public health" was so vague, inferring it into the statute could lead to different rules imposed by various states, frustrating the goal of a single, efficient market for delivery services. (Rowe v. New Hampshire Motor Transport Association)

In the California case, the justices underlined the wide scope of the Federal Arbitration Act, finding that when two parties sign a contract agreeing to arbitrate disputes, it supplants a state law assigning such conflicts to a regulatory agency. The court has heard many arbitration cases over the years, and every day, millions of television viewers watch arbitration in action, on TV "court" shows, where a retired judge, dressed in robes, settles disputes as an arbitrator. But, as reported in a page-one article² in The Wall Street Journal last month, never before had the worlds of the Supreme Court and "The People's Court" intersected.

In this case, Alex Ferrer, a former Florida state judge who now stars in "Judge Alex," a TV show, had sought to void an arbitration clause in a contract with his former manager, Arnold Preston. Mr. Ferrer argued that California's Talent Agencies Act, which assigns disputes between agents and clients to the state labor commissioner, took precedence over the arbitration clause. A California state court agreed, only to be reversed 8-1 yesterday. Writing for the majority, Justice Ginsburg observed that "under the contract he signed, [Mr. Ferrer] cannot escape resolution of those rights in an arbitral forum." "Judge Alex" is produced by Twentieth Television, a unit of News Corp., which also owns The Wall Street Journal. (Preston v. Ferrer)

Write to Jess Bravin at jess.bravin@wsj.com³

URL for this article: http://online.wsj.com/article/SB120351500009479905.html

NYT: Bush urge aprobación de nueva ley de espionaje

Bush Presses House to Approve Bill on Surveillance

By ERIC LICHTBLAU
WASHINGTON — President Bush strongly urged the House of Representatives on Wednesday to quickly approve a surveillance bill passed by the Senate Tuesday evening, saying he would not agree to a further extension of the current eavesdropping law.

The president effectively gave the House a deadline to act, since the current authority to intercept telephone conversations or electronic communications expires at midnight on Saturday.

“There is no reason why Republicans and Democrats in the House cannot pass the bill immediately,” he said in comments made at the White House, adding that the failure to do so “will jeopardize the security of our citizens.”

The president’s remarks came the morning after the Senate handed the White House a major victory by voting to broaden the government’s spy powers and to give legal protection to phone companies that cooperated in President Bush’s program of eavesdropping without warrants.

The immunity for the phone companies is the key difference between the Senate bill and the one passed by the House last year. The president said that without that protection, American telecommunications companies would face lawsuits that could cost them billions of dollars. Without the protection, he said, “they won’t participate, they won’t help us.”

“Liability protection is critical to securing the private sector’s cooperation with our intelligence efforts,” Mr. Bush said.

Mr. Bush praised the Senate version, saying, “The Senate has passed a good bill and it has shown that protecting our nation is not a partisan issue.”

On Tuesday, the Senate rejected amendments that would have imposed greater civil liberties checks on the government’s surveillance powers. Finally, the Senate voted 68 to 29 to approve the legislation, which the White House had been pushing for months.

The outcome in the Senate amounted, in effect, to a broader proxy vote in support of Mr. Bush’s wiretapping program. The wide-ranging debate before the final vote presaged discussion that will play out this year in the presidential and Congressional elections on other issues testing the president’s wartime authority, including secret detentions, torture and Iraq war financing.

Republicans hailed the reworking of the surveillance law as essential to protecting national security, but some Democrats and many liberal advocacy groups saw the outcome as another example of the Democrats’ fears of being branded weak on terrorism.

“Some people around here get cold feet when threatened by the administration,” said Senator Patrick J. Leahy, the Vermont Democrat who leads the Judiciary Committee and who had unsuccessfully pushed a much more restrictive set of surveillance measures.

Among the presidential contenders, Senator John McCain, Republican of Arizona, voted in favor of the final measure, while the two Democrats, Senator Barack Obama of Illinois and Senator Hillary Rodham Clinton of New York, did not vote. Mr. Obama did oppose immunity on a key earlier motion to end debate. Mrs. Clinton, campaigning in Texas, issued a statement saying she would have voted to oppose the final measure.

The measure extends, for at least six years, many of the broad new surveillance powers that Congress hastily approved last August just before its summer recess. Intelligence officials said court rulings had left dangerous gaps in their ability to intercept terrorist communications.

The bill, allows the government to eavesdrop on large bundles of foreign-based communications on its own authority so long as Americans are not the targets. A secret intelligence court, which traditionally has issued individual warrants before wiretapping began, would review the procedures set up by the executive branch only after the fact to determine whether there were abuses involving Americans.

“This is a dramatic restructuring” of surveillance law, said Michael Sussmann, a former Justice Department intelligence lawyer who represents several telecommunication companies. “And the thing that’s so dramatic about this is that you’ve removed the court review. There may be some checks after the fact, but the administration is picking the targets.”

The Senate plan also adds the provision that was considered critical by the White House: shielding phone companies from legal liability. That program allowed the National Security Agency to eavesdrop without warrants on the international communications of Americans suspected of having ties to Al Qaeda.

AT&T and other major phone companies are facing some 40 lawsuits from customers who claim their actions were illegal. The Bush administration maintains that if the suits are allowed to continue in court, they could bankrupt the companies and discourage them from cooperating in future intelligence operations.

Democratic opponents, led by Senators Russ Feingold of Wisconsin and Christopher J. Dodd of Connecticut, have argued that the plan effectively rewarded phone companies by providing them with legal insulation for actions that violated longstanding law and their own privacy obligations to their customers. But immunity supporters said the phone carriers acted out of patriotism after the Sept. 11 attacks in complying with what they believed in good faith was a legally binding order from the president.

“This, I believe, is the right way to go for the security of the nation,” said Senator John D. Rockefeller, the West Virginia Democrat who leads the intelligence committee. His support for the plan, after intense negotiations with the White House and his Republican colleagues, was considered critical to its passage but drew criticism from civil liberties groups because of $42,000 in contributions that Mr. Rockefeller received last year from AT&T and Verizon executives.

John Holusha contributed reporting from New York and Brian Knowlton and Carl Hulse contributed reporting from Washington.

WSJ: Sobre elecciones y el futuro del Tribunal Supremo

McCain and the Supreme Court

By STEVEN G. CALABRESI and JOHN O. MCGINNISFebruary 4, 2008; Page A14
The conservative movement has made enormous gains over the past three decades in restoring constitutional government. The Roberts Supreme Court shows every sign of building on these gains.

Yet the gulf between Democratic and Republican approaches to constitutional law and the role of the federal courts is greater than at any time since the New Deal. With a Democratic Senate, Democratic presidents would be able to confirm adherents of the theory of the "Living Constitution" -- in essence empowering judges to update the Constitution to advance their own conception of a better world. This would threaten the jurisprudential gains of the past three decades, and provide new impetus to judicial activism of a kind not seen since the 1960s.
We believe that the nomination of John McCain is the best option to preserve the ongoing restoration of constitutional government. He is by far the most electable Republican candidate remaining in the race, and based on his record is as likely to appoint judges committed to constitutionalism as Mitt Romney, a candidate for whom we also have great respect.

We make no apology for suggesting that electability must be a prime consideration. The expected value of any presidential candidate for the future of the American judiciary must be discounted by the probability that the candidate will not prevail in the election. For other kinds of issues, it may be argued that it is better to lose with the perfect candidate than to win with an imperfect one. The party lives to fight another day and can reverse the bad policies of an intervening presidency.

The judiciary is different. On Jan. 20, 2009, six of the nine Supreme Court justices will be over 70. Most of them could be replaced by the next president, particularly if he or she is re-elected. Given the prospect of accelerating gains in modern medical technology, some of the new justices may serve for half a century. Even if a more perfect candidate were somehow elected in 2012, he would not be able to undo the damage, especially to the Supreme Court.

Accordingly, for judicial conservatives electability must be a paramount consideration. By all accounts, Mr. McCain is more electable than Mr. Romney. He runs ahead or even with Hillary Clinton and Barack Obama in the national polls, and actually leads the Democratic candidates in key swing states like Wisconsin. Mr. Romney trails well behind both Democratic candidates by double digits. The fundamental dynamic of this race points in Mr. McCain's way as well. He appeals to independents, while Mr. Romney's support is largely confined to Republicans.

With many more Republican senators up for re-election than Democrats, the nomination of Mr. Romney could easily lead to a Goldwater-like debacle, in which the GOP loses not only the White House but also its ability in practice to filibuster in the Senate. Thus, even if we believed that Mr. Romney's judicial appointments were likely to be better than Mr. McCain's -- and we are not persuaded of that -- we would find ourselves hard-pressed to support his candidacy, given that he is so much less likely to make any appointments at all.

In fact, there is no reason to believe that Mr. McCain will not make excellent appointments to the court. On judicial nominations, he has voted soundly in the past from Robert Bork in 1987 to Samuel Alito in 2006. His pro-life record also provides a surety that he will not appoint judicial activists.

We recognize that there are two plausible sources of disquiet. Mr. McCain is perhaps the foremost champion of campaign-finance regulation, regulation that is hard to square with the First Amendment. Still, a President McCain would inevitably have a broader focus. Securing the party's base of judicial conservatives is a necessary formula for governance, as President Bush himself showed when he swiftly dropped the ill-conceived nomination of Harriet Miers.

Perhaps more important, because of the success of constitutionalist jurisprudence, a McCain administration would be enveloped by conservative thinking in this area. The strand of jurisprudential thought that produced Sen. Warren Rudman and Justice David Souter is no longer vibrant in the Republican Party.

Others are concerned that Mr. McCain was a member of the "Gang of 14," opposing the attempt to end filibusters of judicial nominations. We believe that Mr. McCain's views about the institutional dynamics of the Senate are a poor guide to his performance as president. In any event, the agreement of the Gang of 14 had its costs, but it played an important role in ensuring that Samuel Alito faced no Senate filibuster. It also led to the confirmation of Priscilla Owens, Janice Rogers Brown and Bill Pryor, three of President George W. Bush's best judicial appointees to the lower federal courts.

Conservative complaints about Mr. McCain's role as a member of the Gang of 14 seem to encapsulate all that is wrong in general with conservative carping over his candidacy. It makes the perfect the enemy of the very good results that have been achieved, thanks in no small part to Mr. McCain, and to the very likely prospect of further good results that might come from his election as president.

Messrs. Calabresi and McGinnis teach at Northwestern University Law School.