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Supreme Court Guts Voting Rights Act & Bayer Litigation · Bloomberg Law

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  Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
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  Speaker 2: The Supreme Court's conservative majority weakened a landmark civil rights
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  Speaker 2: law that's increased minority representation in Congress and elsewhere, striking
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  Speaker 2: down a majority black congressional district in Louisiana in a
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  Speaker 2: six to three vote with Republican appointed justices in the
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  Speaker 2: majority and Democratic appointed justices in descent. The Court sharply
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  Speaker 2: limited the use of the Voting Rights Act to create
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  Speaker 2: predominantly black or Hispanic election districts. It's a ruling that
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  Speaker 2: Bontress's Republican efforts to keep control of the House in
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  Speaker 2: this year's midterms and beyond. Joining me is one of
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  Speaker 2: the country's leading experts on election law, Rick Hassen, a
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  Speaker 2: professor at UCLA Law School. Rick Howard, you characterized this decision.
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  Speaker 2: Is it a game changer?
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  Speaker 1: This is an earthquake. It is one of the most
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  Speaker 1: significant decisions regarding elections that the Supreme Court has ever issued.
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  Speaker 2: Tell us why so.
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  Speaker 1: When Congress initially passed the Voting Rights Act in nineteen
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  Speaker 1: sixty five, it did things like assure that black voters
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  Speaker 1: in the South would be able to register to vote
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  Speaker 1: but it didn't do anything about the lack of political
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  Speaker 1: power that black voters would have even when they do vote,
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  Speaker 1: especially in situations where white voters and minority voters prefer
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  Speaker 1: different candidates. In nineteen eighty two, Congress responded to that
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  Speaker 1: by amending Section two of the Voting Rights Act to
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  Speaker 1: provide that when white voters and minority voters prefer different candidates,
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  Speaker 1: and it's possible to draw a district where minority voters
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  Speaker 1: can elect their candadive choice under some circumstances, states have
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  Speaker 1: to do that, and for the period from nineteen eighty
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  Speaker 1: six until today, the understanding was that this is what
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  Speaker 1: section two required. Solido did, in his opinion, is essentially
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  Speaker 1: eviscerate Section two of the Voting Rights Act. Although he
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  Speaker 1: claims not to overrule the test that's been in place
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  Speaker 1: since nineteen eighty six, the so called Jingles test, he
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  Speaker 1: does that, and he imposes a test that will be
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  Speaker 1: virtually impossible for minority voters to win. This is going
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  Speaker 1: to lead to many more legislative bodies where there will
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  Speaker 1: be only or mostly white representatives, and minority voters will
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  Speaker 1: not have fair representation in Congress, in state legislatures, and
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  Speaker 1: in local bodies like city councils and school boards.
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  Speaker 2: I mean, how did Justice Alito explain? What was his reasoning?
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  Speaker 1: So what Justice Solito did was say that race consciousness
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  Speaker 1: in law is a potential violation of the Constitution. The
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  Speaker 1: Constitution requires a kind of race blindness when it comes
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  Speaker 1: to elections and comes to other areas. And so in
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  Speaker 1: order to keep the Voting Rights Act constitutional, he had
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  Speaker 1: to reconceptualize it to change the standards. And so today
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  Speaker 1: what he says is that when a group of Minoriti
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  Speaker 1: voters wants to show a claim under Section two, they've
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  Speaker 1: got to show that if say a computer algorithm was
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  Speaker 1: drawing districts, by chance, they would have had a chance
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  Speaker 1: to have this district drawn to give them the opportunity
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  Speaker 1: to elect a cadive choice. You can't be race conscious
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  Speaker 1: and drawing districts. That is turning the Voter Rights Act
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  Speaker 1: on its head. Further, he says that states can defend
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  Speaker 1: the drawing of district lines that dilute the power of
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  Speaker 1: Minoriti voters by saying they're doing it to favor their
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  Speaker 1: political party. So Parson jerry managering, far from being unconstitutional,
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  Speaker 1: becomes a defense to a voting rights case, and that
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  Speaker 1: is profoundly ironic. It also takes the idea that someone
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  Speaker 1: in Alabama could pass a law that would favor Republicans
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  Speaker 1: but not favor white voters. It just makes no sense
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  Speaker 1: given the tremendous overlap of race and party in these cases.
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  Speaker 2: Alito, I understand, when he was reading parts of his
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  Speaker 2: decision from the bench, said basically, don't listen to the descent.
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  Speaker 2: This is not really a big deal. I mean, why
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  Speaker 2: do you think they kept the Voting Rights Act in?
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  Speaker 2: Is it for appearance's sake? So they could say this
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  Speaker 2: isn't a big deal. Don't look here.
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  Speaker 1: So in twenty twenty one, Justice Alito wrote a majority
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  Speaker 1: opinion for the Court in a case called Bernovich versus DNC.
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  Speaker 1: When that case came out, I said, what Justice Alito
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  Speaker 1: has done is essentially eviscerated the Voting Rights Act Section
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  Speaker 1: two as applied outside of redistricting. And since that case,
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  Speaker 1: as I recounted in a recent Law Review article that
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  Speaker 1: Justice Kagan cited in her descent, there has been no
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  Speaker 1: successful case under Section two since Bernovich outside of redistricting.
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  Speaker 1: He's doing the same thing here in Bernovich, he pretended
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  Speaker 1: he wasn't overturning the Voting Rights Act, but he imposed
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  Speaker 1: such a test. He doesn't want to take the political
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  Speaker 1: heat for overturning the Act, but he essentially renders the
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  Speaker 1: dead letter. As Justics Kagan says in her dissent today.
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  Speaker 2: Justice Kagan said, the decision completes the Supreme Court's three
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  Speaker 2: step plan to eliminate the protections of the Voting Rights
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  Speaker 2: Act that started in twenty thirteen the Shelby County case.
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  Speaker 2: Can you tell us about those three steps?
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  Speaker 1: So, there were two key parts to the Voting Rights
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  Speaker 1: Act until twenty thirteen. One part, as you mentioned, is
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  Speaker 1: Section five of the Act that required states with the
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  Speaker 1: history of racial discrimination and voting to get federal approval
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  Speaker 1: before they made changes in their voting rules, and they'd
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  Speaker 1: have to show that the changes wouldn't make minority voters
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  Speaker 1: worse off. In Shelby County, in the John Roberts opinion,
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  Speaker 1: the concerns on the Court said that the formerly used
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  Speaker 1: to figure out which states are covered under Section five
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  Speaker 1: was outdated and therefore unconstitutional. But the majority of Shortness
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  Speaker 1: don't worry. There's always Section two to protect minority voters.
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  Speaker 1: Then came step two, that Bernovich case, where the Court
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  Speaker 1: says Section two, outside of the context of redistricting, is
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  Speaker 1: essentially a dead letter. And here comes the third and
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  Speaker 1: final step, which is Justice Alito in his opinion in Cala, saying,
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  Speaker 1: here's what Section two means. Now, essentially rendering Section two
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  Speaker 1: a dead letter as it applies to redistricting. This is
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  Speaker 1: going to bleach all of these legislative bodies. It is
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  Speaker 1: going to make it very difficult, if not impossible, for
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  Speaker 1: minority voters to win in any of these lawsuits.
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  Speaker 2: Is there anything left of the Voting Rights Act?
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  Speaker 1: Well, there are parts of the Voting Rights Act that survive.
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  Speaker 1: For example, there's a ban on literacy tests. There are
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  Speaker 1: other requirements of the Voting Rights Act, But the two
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  Speaker 1: big parts of the Voting Rights Act, Section two and
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  Speaker 1: Section five, are there in a shell only. And it
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  Speaker 1: is a sad day for voting rights and democracy in
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  Speaker 1: the United States.
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  Speaker 2: Progressive groups have said that as many as nineteen democratic
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  Speaker 2: congressional districts with primarily black or Hispanic populations are at risk,
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  Speaker 2: and nearly two hundred legislation of seats held by Democrats
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  Speaker 2: in the South could also be wiped out. Do those
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  Speaker 2: numbers seem right to you? Because those are huge numbers.
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  Speaker 1: They are huge numbers. I have to say, it's not
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  Speaker 1: my area of expertise to know exactly what is going
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  Speaker 1: to happen in terms of how many districts. But I
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  Speaker 1: do want to make an important point which I think
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  Speaker 1: some people are missing, which is that not only will
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  Speaker 1: Republicans have an incentive to get rid of these districts
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  Speaker 1: sobal democrats. Democrats will want to take their reliable black
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  Speaker 1: voters and spread them out in more democratic districts, thereby
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  Speaker 1: decreasing the number of minority opportunity districts, but still helping
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  Speaker 1: Democrats win their elections. And so I think the real
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  Speaker 1: losers here are minority voters and the American people overall.
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  Speaker 1: If we're going to live in a multi racial democracy,
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  Speaker 1: we need to have fair representation for all people.
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  Speaker 2: That is an interesting point that I haven't heard made before.
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  Speaker 2: Now a question that has been raised is how will
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  Speaker 2: this decision affect the midterms.
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  Speaker 1: It's not clear how this decision will affect the midterms
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  Speaker 1: because many states have already conducted their primaries and it
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  Speaker 1: would be unusual to go back and redraw lines and
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  Speaker 1: require there to be a new set of primaries. But
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  Speaker 1: there are some places, most importantly in Florida, where they
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  Speaker 1: areready right now considering a new districting plan. They can
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  Speaker 1: now consider a districting plan that doesn't have to take
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  Speaker 1: into account the requirement to draw districts that until today
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  Speaker 1: we thought were necessary under Section two of the Voting
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  Speaker 1: Rights Act. And so in Florida and maybe a few
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  Speaker 1: other places where they have not held primaries, we could
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  Speaker 1: see some redrawing of district lines.
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  Speaker 2: But in twenty twenty eight we may see the full
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  Speaker 2: effects of this decision.
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  Speaker 1: I fully expect states like Louisiana and Alabama, if they
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  Speaker 1: can't get done in time for twenty twenty six, to
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  Speaker 1: certainly get redistricting diluting minority voting power in time for
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  Speaker 1: twenty twenty eight.
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  Speaker 2: As you know, President Trump started this mid decade redistricting battle.
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  Speaker 2: Does this decision affect the redistricting that's been done in Texas, California, Virginia,
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  Speaker 2: it's et cetera. Are any of those maps affected or
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  Speaker 2: it doesn't matter because they were done for partisan reasons.
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  Speaker 1: Well, that's a hard question to answer, because Parson jerry
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  Speaker 1: mandering is now a defense and so that should render
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  Speaker 1: maps strong for partisan reasons, immune from Section two claims.
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  Speaker 1: But I should say that the Virginia maps which were
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  Speaker 1: recently passed by voters may or may not survive state
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  Speaker 1: court review in the Virginia Supreme Court, And so there's
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  Speaker 1: still some question marks as to exactly what the lines
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  Speaker 1: are going to be for the remaining primaries in twenty.
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  Speaker 2: Twenty six, so California Attorney General Rob Bonta said, while
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  Speaker 2: the full impact of this ruling is still uncertain, we
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  Speaker 2: know from past experiences that decisions striking down or effectively
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  Speaker 2: gutting provisions of the Voting Rights Act are often followed
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  Speaker 2: by new state laws that restrict access to the ballot
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  Speaker 2: for voters of color.
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  Speaker 1: Well, I think that's already happens, and I think that
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  Speaker 1: Calais doesn't really affect that directly. It was really the
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  Speaker 1: Bernovich decision, the one that Justice A Leader wrote in
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  Speaker 1: twenty twenty one that essentially rendered Section two truthless as
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  Speaker 1: apply to laws that make it harder for people to
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  Speaker 1: register devote. But I think the general mood of the
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  Speaker 1: Supreme Court is that you know, you can do anything
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  Speaker 1: for parson advantage, and the Supreme Court is not going
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  Speaker 1: to police it.
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  Speaker 2: The Supreme Court has been accused more and more of
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  Speaker 2: being political, though Chief Justice John Roberts likes to talk about,
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  Speaker 2: you know, we're not politicians. Does this decision, with six
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  Speaker 2: Republicans on one side and the Democrats on the other,
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  Speaker 2: does this make it even more political or seem even
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  Speaker 2: more political?
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  Speaker 1: Well, I think it's very clear that the conservatives on
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  Speaker 1: the Supreme Court are helping, whether intentionally or not, the
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  Speaker 1: Republican political agenda. And so whether the justices honestly believe
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  Speaker 1: that they're simply applying jurisprudence or they are partisan hacks,
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  Speaker 1: as Justice Barrett claimed they were not, it doesn't really matter.
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  Speaker 1: The effect is going to be the same, and the
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  Speaker 1: effects is going to be to help the Republican Party.
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  Speaker 2: Could Congress pass a law somehow getting around this.
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  Speaker 1: Congress could pass a law revitalizing the Voting Rights Act,
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  Speaker 1: because this was a matter of statutory interpretation, not a
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  Speaker 1: constitutional decision, and so that would dare the Supreme Court
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  Speaker 1: to actually do something and strike it down again. I
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  Speaker 1: think that this decision is going to lead to more
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  Speaker 1: calls for Supreme Court reform because pretty clear what the
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  Speaker 1: political direction of the majority of the Court is and
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  Speaker 1: it's quite a partisan direction.
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  Speaker 2: You've written that this is the worst Supreme Court ruling
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  Speaker 2: in a century. Explain why.
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  Speaker 1: Well, when it comes to voting rights, Section two was
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  Speaker 1: really revolutionary and assuring we could have a more multi
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  Speaker 1: racial democracy, and the Supreme Court by turning the Reconstruction
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  Speaker 1: Amendments on their head and making race consciousness, which Congress
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  Speaker 1: required in Section two, something that is constitutionally suspect. What
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  Speaker 1: the Court is going to do is going to change
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  Speaker 1: the nature of political representation in this country, bringing us
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  Speaker 1: back to a time well before the passage of the
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  Speaker 1: Voting Rights Act amendments in nineteen eighty two.
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  Speaker 2: It's been great having you on, Rick, Thanks so much.
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  Speaker 2: That's Professor Rick Hassen of UCLA Law School coming up.
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  Speaker 2: Beyer asked the Supreme Court for help. This is Bloomberg.
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  Speaker 2: Beyer has faced a tidal wave of litigation, more than
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  Speaker 2: one hundred thousand cases alleging its roundup weed killer causes cancer.
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  Speaker 2: The litigation has cost the company more than ten billion
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  Speaker 2: dollars and resulted in some stunning multi billion dollar jury
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  Speaker 2: verdicts against it. In a case before the Supreme Court
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  Speaker 2: this week, a jury awarded a Missouri man one point
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  Speaker 2: twenty five million dollars after finding that Beyer had failed
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  Speaker 2: to warn him about possible cancer dangers. Beyer argues that
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  Speaker 2: federal law bars the lawsuit because US regulators didn't require
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  Speaker 2: a cancer The company's attorney, former Solicitor General Paul Clement,
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  Speaker 2: put it simply during oral arguments.
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  Speaker 3: The EPA regulation and the government's brief here makes crystal
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  Speaker 3: clear that a registrant cannot change the safety warnings on
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  Speaker 3: a pesticide label without approval of the agency. Thus, Missouri
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  Speaker 3: law here requires something that not only is not required
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  Speaker 3: by federal law, but that federal law doesn't even allow.
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  Speaker 2: The questioning during the oral arguments didn't follow the usual
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  Speaker 2: ideological lines. For example, when liberal Justice Elaina Kagan questioned
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  Speaker 2: the lawyer for the Missouri plaintiff about a provision in
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  Speaker 2: federal law requiring uniformity in herbicide labels, and the lawyer
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  Speaker 2: said the lawsuit wouldn't undercut that uniformity. Justice Brett Kavanaugh
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  Speaker 2: pushed back, just.
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  Speaker 4: To be simple minded about this, mister Keller, you have
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  Speaker 4: a preemption provision that's labeled uniformity, that's clearly designed to
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  Speaker 4: achieve of uniformity. In labeling, and what uniformity would you
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  Speaker 4: e regime.
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  Speaker 1: Achieve uniformity in law?
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  Speaker 5: You think it's uniformity when each state can require different things.
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  Speaker 1: I don't think each state can require different things. The
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  Speaker 1: law has to be uniform. So if Missouri law was
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  Speaker 1: in addition to our difference.
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  Speaker 2: The label's illegal in one state and legal in another state,
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  Speaker 2: that's uniformity. But Chief Justice John Roberts a conservative question
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  Speaker 2: the notion that states worried about cancer risks should have
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  Speaker 2: to wait for the EPA to decide whether to require
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  Speaker 2: a label change.
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  Speaker 5: Well, in US undermine a uniformity. I appreciate that. On
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  Speaker 5: the other hand, if it turns out that they were right,
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  Speaker 5: it might have been good if they had an opportunity
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  Speaker 5: to do something to call this danger to the attention
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  Speaker 5: of the people while the federal government was going through
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  Speaker 5: its process.
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  Speaker 2: And Bloomberg Intelligence estimates that if Bayer loses at the
• 14:57
  Speaker 2: Supreme Court, the amount it will pay will likely exceed
• 15:01
  Speaker 2: the seven point two five billion dollars it's proposed to
• 15:05
  Speaker 2: resolve future and existing claims. My guest is an expert
• 15:09
  Speaker 2: in mass tourt litigation. Elizabeth Birch, a professor at the
• 15:13
  Speaker 2: University of Georgia Law School. She has a new book
• 15:16
  Speaker 2: out called The Pain Brokers, about a mass tort scam Bet.
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  Speaker 2: This was one of the first cases that went to
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  Speaker 2: trial against Beyer, right, Yeah.
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  Speaker 6: So this was a state court case coming out of Missouri.
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  Speaker 6: It was a verdict obviously against Bear and in favor
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  Speaker 6: of the plaintiff and this particular litigation, and so you know,
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  Speaker 6: this is one of quite a few verdicts that have
• 15:39
  Speaker 6: been decided against Bear, although not all of them have
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  Speaker 6: gone that way. And so, you know, I think at
• 15:45
  Speaker 6: the moment, Bear is also trying to negotiate a class
• 15:49
  Speaker 6: action settlement and state court, which is ironic for any
• 15:52
  Speaker 6: number of reasons. But you know, this is one of
• 15:55
  Speaker 6: those pressure points, the idea of being, hey, you'd better
• 15:58
  Speaker 6: stuggle with us in state court, otherwise your claims might
• 16:02
  Speaker 6: be diminished in terms of their value if this is
• 16:05
  Speaker 6: a decision that goes our way.
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  Speaker 2: Put this into the context of the massive litigation against Beyer.
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  Speaker 2: There have been a couple of really eye popping verdicts
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  Speaker 2: of more than two billion dollars for a single plaintiff.
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  Speaker 6: Yes, there have. So this litigation has been going on
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  Speaker 6: for a number of years, now it is centralized in
• 16:26
  Speaker 6: California in front of Judge Chabria at the federal NDL level.
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  Speaker 6: There are a number of state court cases that are
• 16:33
  Speaker 6: also pending, and Bear has really been looking for some
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  Speaker 6: sort of end game and way out to this. This
• 16:40
  Speaker 6: is certainly a piece of that in front of the
• 16:43
  Speaker 6: Supreme Court. Although you know, even a win in front
• 16:46
  Speaker 6: of the Supreme Court wouldn't kill all of the lawsuits.
• 16:49
  Speaker 6: It would make them more difficult to proceed, certainly on
• 16:51
  Speaker 6: the failure to Warren claims, but the plaintiffs have also
• 16:54
  Speaker 6: brought defective design claims. So this is really sen a
• 16:57
  Speaker 6: thorn in the side of Bear for years.
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  Speaker 2: Tell us about the main issue in this case.
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  Speaker 6: Well, the issue that is in front of the Supreme
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  Speaker 6: Court right now is a question about preemption, and it
• 17:10
  Speaker 6: is in some ways a fairly narrow question of preemption
• 17:13
  Speaker 6: that's based on this Pesticide Act, and it's a question
• 17:17
  Speaker 6: about whether the federal law can preempt state law decisions
• 17:21
  Speaker 6: on failure to Warren claim.
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  Speaker 2: So Beyer says that the federal law preempts the state law.
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  Speaker 2: What's the response of the plaintiff.
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  Speaker 6: You know, the plainniffs are making a number of arguments.
• 17:32
  Speaker 6: I think the one that is most intuitive is that
• 17:35
  Speaker 6: once the EPA approves a particular label, things can happen
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  Speaker 6: and things can change. So, you know, in this case,
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  Speaker 6: the label was approved more than a decade ago, and
• 17:45
  Speaker 6: there is some evidence that there is a link between glycophosphate,
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  Speaker 6: which is the key ingredient in roundup and on Hodgkin's lymphoma.
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  Speaker 6: That has been at the heart of this controversy for
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  Speaker 6: a number of years. The World Health Organization has said
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  Speaker 6: that there is a possible carcinogen and glycophosphate. The EPA
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  Speaker 6: has been more reluctant to embrace that decision, and so
• 18:08
  Speaker 6: you know, the big question is, well, what about emerging science.
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  Speaker 6: You know, if it turns out that you have a
• 18:13
  Speaker 6: label that's approved many many years behind, isn't there some
• 18:17
  Speaker 6: sort of responsibility I'm part of the company to keep
• 18:20
  Speaker 6: up with the science and to continue to warn consumers
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  Speaker 6: when there is a change in that science.
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  Speaker 2: In all these cases, questions about glycophosphates connection to cancer
• 18:31
  Speaker 2: are part of the litigation glycophosphate.
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  Speaker 6: So there is a question there is different scientific support
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  Speaker 6: on one side versus together, and this is a question
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  Speaker 6: right now in front of the courts about whether there
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  Speaker 6: is general causation between exposure to glycophosphate and how much
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  Speaker 6: and the development of non Hodgkin symphoma. Again, there's a
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  Speaker 6: significant latency period here. It can be you know, fourteen
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  Speaker 6: fifteen years between the exposure and the development of cancer.
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  Speaker 6: So there's all sorts of general causation questions, which is,
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  Speaker 6: can glycophosphate cause this particular disease? And then specific causation questions,
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  Speaker 6: which is did it cause this particular plaintiffs on hotchkinsimp foma.
• 19:16
  Speaker 2: And the Trump administration has sort of embraced glycophosphate.
• 19:22
  Speaker 6: You know, it's interesting this is yes, so the Trump
• 19:25
  Speaker 6: administration has very much embraced glycophosphate, but it is something
• 19:30
  Speaker 6: that is dividing the Trump base. You know, Robert Kennedy
• 19:34
  Speaker 6: for a number of years actually represented plaintiffs against Monsanto,
• 19:39
  Speaker 6: and a key piece of them make America healthy again
• 19:42
  Speaker 6: is to reduce the use of testicized like glycophosphate. And
• 19:47
  Speaker 6: so my understanding is there were a number of protests
• 19:50
  Speaker 6: out in front of the Supreme Court that included MAHA
• 19:52
  Speaker 6: supporters who were protesting against the use of roundup.
• 19:57
  Speaker 2: So from the oral arguments, it seemed like so said
• 20:00
  Speaker 2: justices were divided.
• 20:02
  Speaker 6: Yeah, I mean, they certainly seem divided, and it didn't
• 20:06
  Speaker 6: fall neatly along conservative liberal lines. So you know, you
• 20:11
  Speaker 6: had some justices you would have thought might be supportive
• 20:14
  Speaker 6: of there who in fact were less supportive of Bear
• 20:17
  Speaker 6: than you might imagine. And then you had a number
• 20:19
  Speaker 6: of the liberal justices who were actually not seeming like
• 20:23
  Speaker 6: they were in favor of Bear. So it'll be interesting
• 20:25
  Speaker 6: to see what this opinion ultimately yields, because it doesn't
• 20:29
  Speaker 6: have the kind of clear lines that we often expect
• 20:32
  Speaker 6: among these types of hot button issues.
• 20:35
  Speaker 2: And what do you make of the Chief Justice suggesting
• 20:38
  Speaker 2: that states considering new evidence that a product is risky
• 20:43
  Speaker 2: should be allowed to call this danger to the attention
• 20:46
  Speaker 2: of the people.
• 20:48
  Speaker 6: I mean, I think that goes back to what you
• 20:50
  Speaker 6: and I were talking about just a minute ago, which is,
• 20:53
  Speaker 6: if there is new and emerging evidence, does that mean
• 20:57
  Speaker 6: that the hands of the company are tied. They can't
• 21:00
  Speaker 6: warn consumers that, hey, you might need to have some
• 21:03
  Speaker 6: sort of personal protective equipment, or hey this might have
• 21:07
  Speaker 6: some sort of link to cancer. Because the EPA has
• 21:11
  Speaker 6: already sort of put that in place. The foot side
• 21:14
  Speaker 6: of all this is that there is evidence that a
• 21:16
  Speaker 6: number of companies, even in light of old EPA warnings,
• 21:20
  Speaker 6: have changed their own labels, and so you know that
• 21:24
  Speaker 6: came up and some of the questioning saying, well, you
• 21:27
  Speaker 6: know companies are doing this all the time. Why shouldn't
• 21:29
  Speaker 6: tie the hands of companies if this is what they're
• 21:31
  Speaker 6: doing already, And so that was kind of one of
• 21:34
  Speaker 6: the points of contention that came up.
• 21:36
  Speaker 2: And tell us about questions of uniformity in the law,
• 21:41
  Speaker 2: which Justices Kagan and Kavanaugh quiz the plaintiff's attorney on.
• 21:48
  Speaker 6: I mean, I think the question is is this an
• 21:50
  Speaker 6: instance in which you really want uniformity in the law
• 21:54
  Speaker 6: and you want uniform law to preempt what the states
• 21:58
  Speaker 6: are doing. And so if you have California saying you
• 22:02
  Speaker 6: need to warn we think that there is some sort
• 22:04
  Speaker 6: of link between Glycophos state and non Hodgkins and FOMA,
• 22:09
  Speaker 6: does that mean that you have to put a label
• 22:12
  Speaker 6: in California and nowhere else in the United States? Do
• 22:15
  Speaker 6: you have this sort of state by state regulatory scheme
• 22:18
  Speaker 6: or do you have federal preemption in telling you what
• 22:21
  Speaker 6: has to be there, and it seems like there's also
• 22:24
  Speaker 6: this sort of related question of how much can a
• 22:27
  Speaker 6: company do even in the wake of the EPA not
• 22:32
  Speaker 6: requiring it, So can you go ahead and put a
• 22:35
  Speaker 6: label on there saying, hey, we're worried this might cause
• 22:38
  Speaker 6: cancer even if the EPA doesn't require you to do it.
• 22:41
  Speaker 2: And farm groups filed briefs in supportive Bayer, arguing that
• 22:46
  Speaker 2: a uniform standard is better than a patchwork of state rules.
• 22:51
  Speaker 6: You know, it's interesting. I think I get the sense
• 22:54
  Speaker 6: that the farm community has split. I mean, there were
• 22:57
  Speaker 6: a number of the MAHA supporters who were concerned about
• 23:02
  Speaker 6: farmers and about you know, farmers exposure to the use
• 23:05
  Speaker 6: of roundup, and I think many of the farmers echoed
• 23:08
  Speaker 6: that The flip side is that, you know, they find
• 23:11
  Speaker 6: that it is a very effective weak killer, and so
• 23:14
  Speaker 6: you know, this is something that many of them want
• 23:17
  Speaker 6: to continue using. So I don't think there's uniformity in hey,
• 23:20
  Speaker 6: all farmers want this or all farmers don't want this.
• 23:24
  Speaker 2: And the roundup that's in use now, does it have
• 23:27
  Speaker 2: glycophosphate in it or not?
• 23:30
  Speaker 6: Last I heard, I think that there took roundup off
• 23:34
  Speaker 6: of the market or general consumers, and it is still
• 23:38
  Speaker 6: available for commercial use, but not for you and I
• 23:42
  Speaker 6: to go and buy and loas or home depot. So
• 23:45
  Speaker 6: I don't think you can continue to purchase glycophosphate on
• 23:49
  Speaker 6: the commercial market for consumers.
• 23:52
  Speaker 2: Be After hearing the oral arguments in the case, Blueberg
• 23:56
  Speaker 2: Intelligence litigation analyst Holly from changed her view and now
• 24:01
  Speaker 2: thinks that the Supreme Court is unlikely to rule that
• 24:04
  Speaker 2: state law failure to warn claims are preempted by federal law,
• 24:09
  Speaker 2: So a loss for Beayor. Did you get any feel
• 24:12
  Speaker 2: from the oral arguments about which way the justices will go?
• 24:16
  Speaker 6: Yeah, I think it's really hard to say. I don't
• 24:19
  Speaker 6: think the argument was as clearly in favor of Bear
• 24:23
  Speaker 6: as many people had expected it to be. So in
• 24:26
  Speaker 6: that regard, you know, it was a bit of a
• 24:28
  Speaker 6: blow to Bear. I think there's stock felt. It doesn't
• 24:31
  Speaker 6: mean that it won't ultimately to be decided in Bear's favor,
• 24:34
  Speaker 6: but it didn't go as many people work predicting it would.
• 24:39
  Speaker 2: So could a decision in favor of Beayor affect other
• 24:43
  Speaker 2: medical device, cosmetic and food industries that are governed by
• 24:49
  Speaker 2: similar laws.
• 24:50
  Speaker 6: You know, it's hard to say without seeing how broadly
• 24:53
  Speaker 6: or how narrowly the Supreme Court decision is written. Traditionally,
• 24:57
  Speaker 6: the Supreme Court has only decided, it has to decide.
• 25:01
  Speaker 6: And you know there's this question of Okay, well, if
• 25:04
  Speaker 6: they decide this about the Pesticide Act, what does it
• 25:06
  Speaker 6: say about the Food Drug Cosmetic Act, et cetera. Certainly
• 25:10
  Speaker 6: it would be potentially persuasive in other areas, but again,
• 25:14
  Speaker 6: depending on how broadly or how narrowly written it is,
• 25:18
  Speaker 6: it certainly doesn't carry the day in other acts.
• 25:22
  Speaker 2: Okay, stay with me, Beth. Coming up next on the
• 25:24
  Speaker 2: Bloomberg Lawn Show, I'll continue this conversation with Professor Elizabeth Birch.
• 25:29
  Speaker 2: We'll hear about her new book, The Pain Brokers. This
• 25:33
  Speaker 2: is Bloomberg. I've been talking to Professor Elizabeth Birch of
• 25:37
  Speaker 2: the University of Georgia Law School. Let's turn out of
• 25:40
  Speaker 2: your new book. In fact, you took time out from
• 25:43
  Speaker 2: your book tour to talk to me, which I appreciate.
• 25:46
  Speaker 2: Tell us about your book called The Pain Brokers.
• 25:50
  Speaker 6: So, The pain Brokers is a book about this group
• 25:55
  Speaker 6: of people who were luring women with pelvic mash down
• 25:59
  Speaker 6: to South Florida. To have the mesh removed essentially at
• 26:03
  Speaker 6: a chiropractor's clinic and an outpatient center next to a
• 26:06
  Speaker 6: strip mall, in order to jack up the settlement values
• 26:10
  Speaker 6: of their claims and to allow doctors, third party litigation
• 26:15
  Speaker 6: funders and middlemen in addition to the lawyers, to recover
• 26:20
  Speaker 6: an enormous amount of money, while the women themselves were
• 26:23
  Speaker 6: often left with very little settlement money and permanent in
• 26:27
  Speaker 6: continence and injuries. So it's a crazy scheme. That's a
• 26:30
  Speaker 6: follow the money story about this public mush litigation that
• 26:34
  Speaker 6: occurred a number of years ago, but that the scheme
• 26:37
  Speaker 6: is very much continuing to happen today. I don't know
• 26:39
  Speaker 6: if you remember the Epic System's data breach that was
• 26:43
  Speaker 6: alleged a couple of months ago, but one of their
• 26:45
  Speaker 6: subsidiaries admitted to selling private healthcare data to masterwork Planes lawyers.
• 26:52
  Speaker 6: So this is something that is continuing to happen today
• 26:56
  Speaker 6: and is a big concern. There were a number of
• 26:59
  Speaker 6: phone calls that went them We're getting where the people
• 27:02
  Speaker 6: on the other end of the line knew the name
• 27:03
  Speaker 6: of their doctor, the name of their hospital, the name
• 27:06
  Speaker 6: of their implant, their birth date, you know, all the
• 27:09
  Speaker 6: information that you wouldn't expect people to have, and then
• 27:12
  Speaker 6: they told them you have a ticking time bomb and
• 27:14
  Speaker 6: you you have to come to South Florida to get
• 27:17
  Speaker 6: this removed immediately or you're going to die.
• 27:20
  Speaker 2: The problem is our information is out there, no matter
• 27:23
  Speaker 2: how you try to protect it. I can't tell you
• 27:26
  Speaker 2: how many times I've gotten notices in the mail that
• 27:29
  Speaker 2: my personal information has been compromised because a company that
• 27:35
  Speaker 2: I haven't even had direct dealings with has been hacked.
• 27:38
  Speaker 2: For example, a company that is handling billing for a
• 27:42
  Speaker 2: doctor I went to. I mean, it seems like there's
• 27:45
  Speaker 2: just no way to really protect your health information.
• 27:48
  Speaker 6: That's right, And you know, we typically think that that
• 27:50
  Speaker 6: translates into credit card fraud or someone's feeling our identity.
• 27:54
  Speaker 6: You don't expect it to translate into people cold calling
• 27:58
  Speaker 6: you and telling you that you have a taking time
• 28:00
  Speaker 6: bombing you in such a convincing way. I mean, there
• 28:03
  Speaker 6: were over one hundred thousand women who received these phone calls.
• 28:06
  Speaker 2: It sounds like an incredible story. Good luck with the book,
• 28:10
  Speaker 2: and thanks so much for taking the time to talk
• 28:12
  Speaker 2: to me today. That's Professor Elizabeth Birch of the University
• 28:16
  Speaker 2: of Georgia Law School. Her new book is called The
• 28:19
  Speaker 2: Pain Brokers. And that's it for this edition of The
• 28:22
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• 28:25
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• 28:29
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• 28:33
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• 28:37
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• 28:40
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