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VitalSigns posted:No gently caress you, it is a fundamental right, and it's about drat time the legal system stopped pretending that the bigots have any motive other than sheer spite and hatred in preventing people in love from getting married. First off, you really don't need to start off your response by swearing at me. We have similar views of the subject, and attacking me for disagreeing with the content of the decision doesn't help the discussion. I didn't say that the decision treats the right to marriage as fundamental, I said it treats it as absolute, which is separately problematic. The right to marriage isn't absolute, and it's also not predicated on love. The difficulty is that while you and I may disagree with them, the bigots do in fact have arguments- arguments and judges, and PACs, and test cases, and a mass of state legislators. A rhetorically laden decision- or a "sweet" one, is going to be less effective at making the decision stick than a tersely worded one that Scalia, Thomas and Roberts et al will have more trouble flipping. Quoting Scalia on Windsor is fine, and it may be very effective, but every embellish beyond the structure of the legal argument is a piece of dicta a conservative lawyer or adjudicator can use to get out from under, or reverse, this decision. Generally, it's a poor practice for judicial language to contain this sort of unnecessary laden language. It's not about how the decision makes us feel, or whether we agree with it. Judicial decisions should function as technical documents, not opinion pieces. To treat them otherwise, or to allow their derogation to a pattern of such practice, harms the effectiveness of the legal system more generally. And yes, "Suck it homophobes" would probably not have survived the appeals process- and it's unlikely its author would have, either. vvvvv No, because that would require a clear distinction between dicta and decision. The nature of stare decisis invites selective and skewed application of prior caselaw, and the examples of that are infinite. Grandiose judicial language is bad judicial language, because unclear judicial language produces unclear law. Discendo Vox fucked around with this message at 07:03 on May 21, 2014 |
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May 21, 2014 06:40
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ulmont posted:What does "deontological" mean to you, as compared to "loaded" and "political?" It refers to the broad invocation of rights language. It's not that there isn't an appropriate place for rights language in the case, there obviously is, it's that Jones messes with it by also tossing in a bunch of overbroad or inaccurate language about rights at the same time. This encourages sloppy application, practice and thought involving rights law. The Warszawa posted:I have a lot less of a problem with judges writing like that than I do with briefs being written like that, but only because I think it's more powerful to lay out the facts when they're that stark and just let them speak for themselves and therefore it becomes an issue of pragmatism. On the contrary, I think that intensely personal opinions can be instrumental in sticking an opinion in the jurisprudential firmament, like "Blackmun's" dissent in Bowers and likely Sotomayor's in Schuette in the future. I'd note that your examples are both dissents- although the citation of dissents can still make this problematic, it's a lot less so because it's not normally serving the function of law. I suppose it would be helpful to separate out my two objections here: 1. Jones' opinion is so freaking flowery that it's going to be more vulnerable to attack in this particular case, and 2. Unnecessary, rhetorical or invective language in judicial opinions (I'm here especially referring to majority or binding decisions, not dissents) are a source of structural problems, both within a common law system and within a broader republican government. evilweasel posted:Yeah I agree with this. Sometimes the best opinion is one coldly laying out the facts and why they compel a decision. Other times, like this one, these decisions are very appropriate because it's important to make it clear it's an issue of fundamental justice and cold facts and legal logic don't do the decision justice. A written decision isn't just about the legal principles that apply: it's also about why those are the correct legal principles to apply. The concept of "Justice" is doing a lot of work in your reasoning here. What do you mean by it, and how does this sort of decision serve justice in the micro and macro scale?
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May 21, 2014 17:58
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I should probably caveat all of this by saying that, although I'm not a psychotic, hypocritical textualist nutjob like Scalia, I do lean further toward formalism than I suspect most of the thread does. I'd really like the courts (and the Court) to be depoliticized as much as possible, and a greater degree of formalism (consistent, ethical formalism, not Scalia formalism) could go some way toward stabilizing the justice system, regulating its outcomes, and generally making it more just- and the government more democratic, as a result.evilweasel posted:I mean the principles placed into the Constitution under the Bill of Rights and the 14th Amendment that place certain actions outside the legitimate power of the majority to enact into law. Decisions resting on those sorts of principles should (and generally do) elaborate why justice commands a certain result because you need to explain not only what the law is, but why it is that way. Thanks, that clarifies things. To the extent that this is the case in a given scenario, I actually think a dispassionate approach to the subject is even more important! Right now a broader interpretation of a particular right is what I'd consider the correct one, but to the extent that constitutional interpretation is used for prescriptive purposes, establishing a clear standard or principle for the pursuit of justice is necessary to avoid creating a legal mess further down the road. Penumbras are fun to theorize about, and they can help you get where you want to go, but they also produce massive fractures in the jurisprudence that cause problems for the interpretation and application of the law. To be clear, some degree of ambiguity and rhetoric judicial decisions is unavoidable, and I'm not suggesting that decisions need to be technocratic snoozefests, either (though the communication scientist in me says there are a bunch of format requirements that could be introduced to judicial opinions that would make the legal system work much better). Rather, rhetoric or prescriptive language, if overapplied, serves to obscure the nature and application of justice in subsequent cases- it's clear that the constitution demands something, but what it demands, and how, when, even why, becomes difficult. I might point to the period after Brown as an example of how this sort of ambiguity can be exploited. There's certainly a range of acceptable and understandable means of expressing a textual basis for a principle of constitutional justice, but the decision in question does a lot of poo poo that doesn't accomplish any of those goals. I mean, look at the section headings, for crying out loud. VitalSigns posted:Do you really think this is an actual concern? That a superior court may overturn his ruling because his flowery opinion wasn't specific enough in its reasoning to address some heretofore untried but brilliant anti-marriage equality argument? Could you maybe explain exactly what this vulnerability is? The problem isn't just that it's insufficiently specific, but because the wide array of dicta he included in his opinion give other courts a way to attack it, or distinguish it. I actually already gave you some examples in your own citations if you'll look upthread a bit- fundamental rights are different from categorical and absolute ones, and at different points Jones seems to be asserting all three categories. The bigots have arguments, you just don't agree with them. I think you're right, but this doesn't mean that those arguments don't have the opportunity to succeed again. To the extent that you want to take a victory lap, a judicial opinion is the wrong place to do it. The Warszawa posted:Well if you want opinions of the Court that fit the bill, look at O'Connor in Grutter or Roberts in Parents Involved, though that last one may depend on whether your classify smug as an emotion. Well, it gets weird at the SC level since there's no appeal, but I think the principle generally holds. iirc, I believe that Scalia and Breyer have historically been the worst offenders in terms sacrificing clarity for wit. Could you be specific about the use of rhetoric etc in Grutter? I'm having trouble finding this- which may just indicate that she's doing it subtly enough that I don't view it as problematic. Also,  is the default emotion for all Supreme Court decisions- if anyting, I thought the Roberts decision was unusually restrained, for him! I do note that he distinguished Grutter using language that arguably went too far into rhetoric, although it's the classic dicta/decision divide, again.I should also add the caveat that as a bioethicist trying to bring some order to a field in chaos, "principles" can gently caress right off. The drat things are structurally inconsistent- which is why they're popular. Like Scalia with an original text, the user can make them do whatever they want, no matter the inconsistency.  Sorry, "Principlism" is really popular in bioethics right now and it's a freaking mess.GhostBoy posted:good Discendo Vox fucked around with this message at 21:11 on May 21, 2014 |
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May 21, 2014 21:00
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The Warszawa posted:The assertion that the progress of race relations is a) linear and b) such that race-conscious programs can terminate within twenty-five years is rhetoric without an ounce of substantiation let alone substantiation in the law. The really horrible part of that decision for me isn't that it's rhetorical- it's that I think those parts are meant to be genuinely explanatory and a part of the legal standard expressed. I think Roberts actually believes that poo poo. I kinda want him to get stranded on the east side of DC for a couple days, just to see what it would do to him mentally.
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May 21, 2014 21:15
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VitalSigns posted:I don't think all judicial opinions should be written like this; where would you get a silly idea like that? But I don't mind this opinion being written this way because the bigots have no actual arguments so why not call them out on the regressive poo poo heads they are? Your fears that flowery language will somehow lead to the ruling being overturned seem...overblown... They're not. As I mentioned before, there are two objections to this decision- first, it weakens its effectiveness, and second, it's bad legal practice. Ghostboy rightly pointed out that the circumstances of the case makes its later consideration unlikely, but when the SC next hears a gay marriage case, it is very likely that the conservative justices, in the majority or the minority, will quote the ambiguous, overladen language of this decision to strengthen their own attack on the legitimacy on gay marriage. Roberts' citation of Ginsburg in Parents Involved is actually a very good example of this- but that's a much subtler example of both rhetoric and its exploitation than the decision in question, which is so unbalanced that legal reasoning is secondary to Greenwald-esque weasel words. If Jones wanted to make a clear case for the validity of same-sex couples, he should have ditched all the "clearly"s and "obviously"s and provided something more airtight. You can keep reciting that "bigots have no actual arguments", but they still are capable of counting to five- and it's still up to adjudicators, who can choose to accept the poor arguments against gay marriage that those bigots raise. The legality of equal access to marriage for same sex couples is not inevitable, nor is it irreversible. The opposing side on this topic doesn't have to win now if they can also win in thirty years. In terms of your expectations of legal opinions, I'm sorry if I overstated your position- but this sort of practice should not be acceptable at any level of the judiciary, under any circumstance. Jones is neglecting his job to exercise his creative writing skills, and that's inexcusable. If it were possible to better regulate the behavior of adjudicators(and I suspect it is not), this sort of behavior would be grounds for a disciplinary response. VitalSigns posted:...and I don't see any reason why people don't have an "absolute right" to be treated equally under the law or why an opinion that says they do should be dangerous, but I'll leave that to you to explain if you wish. From a legal perspective, there are no "absolute rights" under the Constitution- it's not a concept that normally appears in legal discourse because it's too dysfunctional. Absolute rights aren't balanced against any others- they are, like the word indicates, completely absolute. An absolute right to equal treatment under the law would, if fully applied, prevent criminals from being treated differently from the innocent, men from being identified separate from women, minors from adults. If this seems nonsensical, that's because it is-categorical rights aren't functional, but their rhetorical invocation has the effect of obscuring the actual standards and criteria via which rights apply. This is one of the difficulties of the pure deontological framing of legal standards- it invites an unclear expression of the borders of "rights". It allows us to feel strongly about moral desert, while making our claims, and our actions, resistant to reasoning or compromise. This is a Bad Thing- it's the approach to moral philosophy that brings us sovereign citizens, Objectivists and whatever the hell Ron Paul really is behind closed doors. VitalSigns posted:No. No they don't, their arguments are literally "gay people are gross and the government should help me treat them like dogshit". That's it, and giving it any more weight than that is part of why it takes so goddamned long to get equal rights for anyone in this country. Normally yes, the court opinion should make a clear case and be well-grounded in law for all the reasons you said, but when we're talking about grown adults throwing a big tantrum about icky gays I'd rather the Supreme Court opinion just be an article from the Onion. I understand you feel strongly about this issue. Maybe try this: imagine if the Court issued a similarly phrased opinion invalidating gay marriage. Imagine that they similarly ignored the arguments and evidence you presented and just attacked you directly. You would correctly feel that the legal system that was supposed to consider and represent your side was illegitimate. This would damage your belief in the legitimacy of the legal system as a whole, and rightly so. The Court would be doing the exact opposite of what it's supposed to do. I'm not willing to undermine the norms of legal jurisprudence, and the rule of law generally, because I feel particularly strongly about a given issue. That's a really bad way to do things- not destroying systems for individual cases is one of the basic reasons why we have a justice system in the first place, to promote consistency and the inclusion of opposed voices in the elaboration and judgement of the law. Discendo Vox fucked around with this message at 21:43 on May 22, 2014 |
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May 22, 2014 21:34
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Green Crayons posted:You pointed out the "ash heap of history" quote, but that rhetorical flourish was at the end of the opinion. What particular rhetorical flourishes are you taking issue with that actually muddle the legal analysis in these cases? There is quite a bit of it in the reasoning, though it's not as infuriatingly blantant- it mostly consists of suggestive word choice that invokes, but does not state, standards, as well as formular rhetorical maneuvers such as litanization that Jones is probably using without even noticing. The more general problem, though, is that the end and the beginning of the decision aren't somehow exempt from the norms of legal writing; there's no distinction between dicta and decision. Other courts are free to cite and use any part of the decision, which is what Roberts does in Parents Involved. This is why you see a lot of jurists accusing each other of "citing dicta". Jones is using "ash heap of history" because he's hoping that part gets cited- although that's going to be trouble if anyone points out that it implies a historicist framing of the issue.
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May 22, 2014 22:20
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Green Crayons posted:That's fine. I just want to see the "creative writing skills" in the legal reasoning bits that has you so upset. Please provide examples. At 28, "That the gay and lesbian community has endured historical discrimination at the national level is uncontested." OK. That's adequate. The point isn't contested. You can give a cite to demonstrate that it's settled. Jones spends a page giving detailed examples. There's some interesting stuff where the Defendants tried to avoid it by arguing for geographic context, that gets half a page and a really badly phrased footnote. At 29, "Within our lifetime, gay people have been the targets of pervasive police harassment, including raids on bars, clubs, and private homes; portrayed by the press as perverts and child molesters; and victimized in horrific hate crimes." There's no need to litanize examples of police harassment, it's already cited to another case. The word "horrific" is used purely to increase the valence of "hate crimes", which is not a word that needs it. At page 32, from the Relation to Ability section: "Defendants’ silence on this point speaks volumes, and either connotes candor, agreement with Plaintiffs, or both." The sentence doesn't need to exist- All Jones needs to say is that the point is uncontested, or that Defendants are silent on the issue. These are things that people do when they're writing expressively or persuasively, and they're structural rhetorical methods. If Jones was being dispassionate about the case, or even if he was just trying to write an opinion that seemed dispassionate, these choices would not have been made. Jones isn't trying to hand down a legal decision, he's trying to make a point- and that screws with the law. Green Crayons posted:Well, yes, there is a distinction between dicta and decision. And I know you have an argument about jurists disagree over what is actually dicta in any given case. But that's really beside the point. An introductory or conclusion rhetorical flourish that is completely separate from the legal analysis sections is, at best, a thesis statement that has no direct bearing upon the actual legal analysis. Green Crayons posted:Your fear of people citing "ash heap of history" as part of their legal analysis of whether, say, homosexuals are an insular and discrete minority, is perplexing because it does not relate to the any legal analysis. That is, it's irrelevant to the legal analysis in the case in which the rhetorical statement itself was made. Green Crayons posted:So it instead looks like you're upset that the opinion contains some humanizing language in the non-legal analysis sections. Green Crayons posted:I don't know what specifically you're referring to when you invoke Parents Involved. Roberts cited, in his legal analysis, an introductory or conclusion statement that was not part of a legal analysis in a prior case? Green Crayons posted:This is projecting quite a bit. I have no idea what Judge Jones was thinking when he used the phrase "ash heap of history," but my guess is that it was for laypersons who he knew would be reading the opinion and not with a hope that an appellate court would go, "by golly, I'm going to quote that particular phrase!" I don't know why you're assuming its the latter rather than the former. Green Crayons posted:I'm also not sure what you mean by "a historicist framing of the issue." Let me be clear here. I agree with the outcome of the case- I support the cause of equal access to marriage. I think the way it was presented, for any audience, was really lousy- both for advocates on the issue, and for a legal system that depends on at least the appearance of equanimity. This case is frustrating because I do agree with the outcome, but I disagree with people cheering for this sort of opinionated approach to legal practice- this is exactly the same sort of that makes Scalia and Roberts so infuriating. It should be no more tolerable when it's being done by "our side" than when they do it.OK, that was a wall of text. How 'bout a new topic- which Justice, active or retired, do folks think will die next? Which one do you hope will die next?
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May 23, 2014 07:05
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I don't want to further derail the thread, so I think I'll stop pushing it here. Green Crayons, I think our disagreements do map down to a difference in terms of where we land on the Realist-Formalist spectrum- I'm way out at near the formalist end, as folks can probably tell, so I view the persuasive aspects of judiciary decisionmaking as procedural and minimal. I view the robotic, dispassionate judicial opinion as an ideal that should be pursued by all jurists. For example, w/r/t Jones's discussion of discrimination for the classification of homosexuals under the constitutional analysis, there's precedent and a separate showing of discrimination, and there is no dispute on the point in the case, so there's no reason to provide more evidence- the circumstances make it a structural decision, not one requiring a burden. The reason I bring up Scalia and not Kennedy is because I object to almost any informal language in decisions- Scalia and Roberts fold rhetoric into their decisions with a tremendous amount of , but that makes it no less objectionable than Kennedy's more openly informal writing (and I disagree with Scalia and Roberts more, so it's easier for me to spot). I keep including the viewpoint disclaimers because I've had folks accuse me of being racist/homophobic/etc when I was actually trying to split hairs about related, but distinct issues-I think it's how I got my magnificently ambiguous custom title. The Warszawa posted:Well he does and he doesn't - he does distinguish Grutter, but only after he assimilates (or conflates) school desegregation law into affirmative action law, which is the greatest trick ever pulled since Roberts convinced his eighth grade English class he didn't exist. Yeah, I can't hate Roberts quite as much as Scalia because he comes up with these incredibly devious tricks that look valid on their face. Scalia just uses an openly inconsistent "theory" approach, which I view as more damaging to the integrity of jurisprudential practice. (Given how much he comes up in my posts, no prizes for guessing who tops my SCOTUS Death Pool!)
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May 23, 2014 20:52
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Munkeymon posted:I'm guessing this just makes your skin crawl, but for a non-lawyer like me it's actually a great read (also it's Enh, I don't know enough about jurisprucence in Canada to know if the same standards should still apply. At a minimum, the decision is providing a full narrative of the case, and it's got a clearer format and structure. I like those features, and I've observed them in UK decisions too. The extensive factual and background recital makes more sense- and I understand it's a normal feature of cases in that system. The use of the first person is disconcerting, but can have merits in maintaining the limited identity of the court. What exactly in the decision should I be objecting to? If you're referring to the stuff at the end, yeah, I'd like less of that, but the different format practices make it harder to avoid because the judge recounts their in-person actions. The case itself was irregular enough in its contents that it's hard to know what to do with it. I'm guessing Rooke had the same problem. Discendo Vox fucked around with this message at 21:48 on May 23, 2014 |
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May 23, 2014 21:44
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but they're dealing with insanity we've exported).
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Gerund posted:http://www.nytimes.com/2014/05/25/us/final-word-on-us-law-isnt-supreme-court-keeps-editing.html?_r=0 They don't need to be walked back for it to be a big deal. The presence of contradictions between records of supreme court cases is very troubling- I had no idea it was so widespread.
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May 26, 2014 00:03
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Yeah, I agree, it could be infinitely worse. It's problematic mostly because it demonstrates the betrayal of some of the assumptions that underlie modern jurisprudence, and the rule of law- the consistency and availability of the law to citizens and practitioners. It's especially weird and bad that the Supreme Court's own site doesn't have correctly updated info. These changes aren't especially hard to maintain, especially in comparison with some other areas of legal recordkeeping.
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May 26, 2014 15:33
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Kalman posted:Honestly, the only real problem with it is that it's done silently, not that it's done - they really ought to at least issue errata or black lines or something to show it was changed. There is a system and policy for promulgating the changes, which is why Lexis and Westlaw had at least some of them recorded- the problem is that the process is isn't universalized and consistent. Another product of a state of affairs in which the publication of caselaw is effectively privatized.
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May 26, 2014 22:56
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Man, I'd love it if C-SPAN got out of congress, too. The public broadcasting of the proceedings of congress, especially panel hearings, ensures that nothing substantive gets done. Just to be clear, I'm not suggesting conspiracy or intentional subversion of the public legal record- I just think these problems could be avoided if the US had a centralized, public, uniform system of publication for court decisions (like several other countries in Europe appear to have). It's the fracturing into private and public publication systems, and the dominance of the big two, that makes this sort of systemic error probable. edit: Alaemon isn't alleging conspiracy, either- he captures the problem quite well. If I erroneously cite to an outdated version of the case in my legal work, it looks like I'm either incompetent or manipulating the record. What's worse, it wouldn't surprise me at all if courts are making the same mistakes! Discendo Vox fucked around with this message at 04:07 on May 27, 2014 |
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May 27, 2014 04:03
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Kalman posted:What, like the U.S. Reports, which are the authoritative final version and are a public publication of SCOTUS decisions? Yes, except I want it to apply to all US court systems, be properly maintained and integrated, and not have such a time delay that there is a void filled by five to ten alternate decision databases. It's quite doable- the current system is massively duplicative and spread between a wide number of companies. It really should all be in one place.
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May 27, 2014 04:14
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Alaemon posted:good This is highly analogous to a phenomenon I'm trying to end in the sciences. It happens whenever citation is fluid and the system of records is siloed.
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May 27, 2014 06:10
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Munkeymon posted:"We've been doing it this way for a long time and nothing too awful has happened that we've deigned to officially notice so why don't you take yer fancy compooter mochines and git" Nah, the problem is that Westlaw and Lexis share a virtual monopoly on the practice, and make insane amounts of money by charging exorbitant rates for lawyers to access their databases. They lobby against changes that publicize and make finding the caselaw easy.
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May 27, 2014 19:06
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Kalman posted:Do you think the government should ban west law and lexis from republishing opinions that are made public? What about Google Scholar? Fast case? You did know that federal court decisions are generally publicly available from the courts themselves, right? At worst, a nominal PACER fee away. The systems you describe are either not considered valid for citation, are inaccurate, or they just don't exist. A lot of caselaw never gets digitized once you get below federal level. UberJew posted:No, obviously banning is inappropriate. The government should be providing that search and support functionality (functionality that is widespread, well-understood and not particularly expensive to implement) for the public interest. Obviously doing so would just happen to destroy those companies as a side effect, which is one reason it doesn't happen. UberJew is exactly correct here. The current legal publication system is fractured and poorly maintained- and Westlaw/Lexis profit from aggregating this system and publishing it. As such, they have a vested interest in maintaining its ruinous state. Things used to be even worse- iirc Lexis is a relatively recent entrant into the legal database market, and it used to be a de facto monopoly. Even so, these companies have little reason to innovate, and the result is that the law is placed behind a paywall that can cost thousands of dollars to access with a single text search. Uberjew mentions the wrongfully convicted, but in practice, everyone who can't afford or reach a lawyer has to do their own legal research, wrongfully convicted or not, plaintiff or defendant. The costs of legal database access also inflate the cost of access to legal representation, which is one of the many pressures making the current legal system unjust. What frustrates me about this is that it's an example of inappropriate privatization of a public good that's more central to the nation than any sewage system- it's the law itself, the thing citizens are supposed to abide by, that is placed out of their reach and rendered less functional by the de facto privaization of database management. It's also incredibly inefficient and subject to error, like the NYT article that started this discussion indicates. The modernization and standardization of our legal databases is the single lowest hanging fruit for justice system reform in this country. It would alleviate pressure on a wide range of problems in how the current justice system operates. I would be easy to do and there's no meaningful policy counterargument. It's not even been politicized! I feel as if changing it would be a real no-brainer. Discendo Vox fucked around with this message at 23:28 on May 27, 2014 |
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May 27, 2014 23:16
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Cheekio posted:I just went to a small talk by one of the key server architects at lexis, and whereas the point of the talk was that his data was secure, the implication that what their company does procedurally is non-trivial was definitely conveyed. Employees of the company aren't going to tell you that they do this. And if it's a server architect, they probably have no idea what the executive-level approach to these things is. If this were someone from Lexis working on server architecture, he's probably thinking of LexisNexus, which, together with WestlawNext, represents the relatively new "cadillac" version oftheir database system- more bells and whistles, much more expensive. These represent the first improvements or innovations in the databases essentially since their conception, and they were created almost entirely in response to each other and the slow emergence of nonprofit, free to use databases. Lexis and West depend on the fact that other database systems aren't considered trustworthy. People ultimately pay for their services because there's nowhere else to go. If the government actually made their caselaw accessible (and the government is fully capable of performing the same storage, indexing, revision and monitoring tasks that the private corps are), then there would be very little to draw people to these companies.
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May 30, 2014 20:23
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Cheekio posted:Well yeah, but that's all motive, which I specifically said I didn't trust because of my experience with the subject. Is there any evidence for lobbying or is the motive the only reason it's believed Lexis and Westlaw lobby against a public database? There's nothing for them to lobby against. There haven't been any efforts to create a meaningful public competitior.
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May 30, 2014 20:59
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I haven't been following this dispute, but is the thread really just encountering the majestic beast known as legal reasonableness?
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Jun 2, 2014 23:51
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The practice of broadening the remit is a bit more refined than just obfuscation, although don't get me wrong it's really reprehensible.
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Jun 3, 2014 01:41
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I haven't read the decision yet, but if Pom prevailed, it's going to be a Very Bad Thing. The company is known for their own deceptive and overly broad health effect claims; these most recent suits have been specifically over applying flavor labeling in a way the FDA hadn't intended- which is, again, a Bad Thing. They'll be using it to prevent anyone else from marketing juice blends or artificial flavored products in a way that will really badly disturb food labeling law. If it has the effect of cleaving FDA and FTC positions on these practices, that's even worse.
Discendo Vox fucked around with this message at 20:56 on Jun 12, 2014 |
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Jun 12, 2014 20:52
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Hieronymous Alloy posted:Well, it's bad in that it makes the standards confusing but why is it bad for consumers? It would seem that the logical defense to these suits would be to actually label your products honestly -- i.e., don't sell grape juice with blueberry flavoring as "blueberry juice," even if technically allowed to by FDA rules. If you're going to sell blueberry juice make it with real blueberries? Two reasons, first, because current FDA rules already incorporate that practice in product name labeling and ingredient list regs. There are already front of package flavoring label requirements for scenarios like the one you describe. Second, POM is pursuing this because it's going to let them litigate blended juice products- this is the same company that tried to prevent all its competitors from using the word "pomegranate" on their labels, then tried to sue them for having fruit juices in the product name if there were also other fruit juices in the product. That's the thing about POM wonderful as a company- you can rely on the fact that any lawsuit they bring is trying to abuse the regulatory structure to shut down the market. If a POM case sounds reasonable, it's because they've falsified evidence or excluded facts. Shifty Pony posted:The ruling was that just because a label meets FDA requirements doesn't mean that it is exempt from the requirements of the Lanham Act with regard to being deceptive, not that the juice blend label was deceptive. But Pom probably was the only food company large and litigious enough to push this through to that conclusion because the rest of the food industry either loves being deceptive as gently caress with their labeling or is too small to not get squished. That's going to create a huge mess, because industry will play the two agencies against each other. FDA labeling regs are specific enough that label elements that fall under their remit should solely fall under their remit- if there are problems, they should be resolved at the level of the agency that's also regulating, and fully understands, the content of the product. Shifty Pony posted:As an aside food labeling has clearly passed beyond puffery and into deception. With the combination of the naming and the prominence of the pomegranate and blueberries the label was clearly implying to a customer that those juices made a substantial portion of the blend and not 0.3% and 0.2% respectively. Even Justice Kennedy indicated he was fooled. Kennedy being fooled by labeling is a low standard. The whole thing is that the amount of a fruit juice isn't significant in a product from a consumer information standpoint, and isn't the basis of product names- and if it is a subject of consumer interest, labeling statements to that effect would be subject to Lanham. A huge number of products use simulated flavors, and while it might feel reasonable to enforce against some juice companies on this point, it'll effectively bar a lot of products from market and raise the production costs of others. evilweasel posted:That's not popcorn, my attorneys will be in touch. "Buttered" microwave popcorn would probably be an example of this. Discendo Vox fucked around with this message at 21:43 on Jun 12, 2014 |
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Jun 12, 2014 21:34
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Hieronymous Alloy posted:I think Kennedy being fooled by the labeling seems appropriate, and relative amount of juice seems like an extremely significant detail to me. If I buy something labeled "orange juice" I don't expect to get 99% apple with an artificial orange flavoring added. Hell, I'm not sure I'd have a problem with requiring simulated flavoring to be explicitly labeled as such in all cases. This is already required under current ingredient listing and product name laws. I really need to read the case- it sounds like POM successfully manipulated a product ingredient ratio scenario that is vaguely counterintuitive into an attack on all artificial flavoring and other products that could compete with their product. To explain the labeling a bit, using your example, you can tell if that's the case because ingredients are listed in order of volume in the listing, so apple juice would be listed first and a chemical name or "artificial flavors" would be listed last. There are similarly explicit requirements on product identity naming, although I can't recall their exact composition- my EAS labeling bible says they're at 21 CFR 101.30 and 102.23. Hieronymous Alloy posted:I mean, poo poo, switch the context. If this were 99% rat meat with beef flavoring being sold as "ground beef" no one would think twice before grabbing the pitchforks. Just because something is accepted industry practice doesn't mean it isn't a giant con of consumers that should be shut down. Truth in labeling should mean actual truth, i.e., the actual prohibition of practices that would deceive an ordinary consumer. That's USDA, which has different regs and a worse capture problem. It's also very different from a blended juice product. I don't know the area as well, but if you're interested in how that would play out, I believe this document is up to date. Discendo Vox fucked around with this message at 22:06 on Jun 12, 2014 |
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Jun 12, 2014 22:02
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But the mandated disclosures are much more than technical ones that anybody could miss! 21 CFR 101.30 posted:
These are front of label requirements- I believe they have to appear right next to the product name. If the products at issue were still misleading, it's because the company in question was breaking other parts of the labeling law involving size or location of these disclosures. Discendo Vox fucked around with this message at 22:20 on Jun 12, 2014 |
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Jun 12, 2014 22:17
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evilweasel posted:I disagree, because as a practical matter we know that large amounts of people were mislead. That's what I'm getting at: I don't like this presumption that the information was disclosed, therefore it's not misleading. I have no problem with Coke arguing that based on the totality of the label it was not misleading and the mandated disclosures are a large part of that: I have a problem with the presumption that because the mandated disclosures were there it is not misleading. First off, I haven't seen a showing that people were misled, but more importantly, I think I've miscommunicated my position on the role of the FDA regs here. It's not the presumption that information was disclosed, it's that there's a whole regulatory and legal apparatus being second-guessed on a limited knowledge of the law and facts, and that the legal structure already precludes the practice in question. From the decision: quote:POM competes in the pomegranate-blueberry juice market with the Coca-Cola Company. Coca-Cola, under its Minute Maid brand, created a juice blend containing 99.4% apple and grape juices, 0.3% pomegranate [*6] juice, 0.2% blueberry juice, and 0.1% raspberry juice. Id., at 38a; Brief for Respondent 8. Despite the minuscule amount of pomegranate and blueberry juices in the blend, the front label of the Coca-Cola product displays the words "pomegranate blueberry" in all capital letters, on two separate lines. App. 38a. Below those words, Coca-Cola placed the phrase "flavored blend of 5 juices" in much smaller type. Ibid. And below that phrase, in still smaller type, were the words "from concentrate with added ingredients"-and, with a line break before the final phrase- "and other natural flavors." Ibid. The product's front label also displays a vignette of blueberries, grapes, and raspberries in front of a halved pomegranate and a halved apple. Ibid. This is already illegal. They've violated the size and placement requirements for those disclosures, which are supposed to be larger and immediately under the product name. This sort of violation happens a lot(FDA doesn't have the funding to pursue people until folks start dying), but it's still the law, and it still deals with the confusion at issue. If a complaint were brought along these lines, Coca-Cola would clean up their labels, customers would get clearer dislaimer language, and things would continue to function. POM ignores this, and is instead trying to get the FTC involved under Lanham. Why? Because it gets the Court to overturn this: quote:The Government disagrees with both Coca-Cola and POM. It submits that a Lanham Act claim is precluded "to the extent the FDCA or FDA regulations specifically require or authorize the challenged aspects of [the] label." Brief for United States as Amicus Curiae 11. Applying that standard, the Government argues that POM may not bring a Lanham Act challenge to the name of Coca-Cola's product, but that other aspects of the label may be challenged. That is because, the Government argues, the FDA regulations specifically authorize the names of juice blends but not the other aspects of the label that are at issue. I like this position, because the FDA already has a remit on customer confusion for the associated label elements, and it preserves a role for the FTC outside the scope of FDA regulation. By overturning this longstanding practice by the agencies, POM is able to set the FTC against FDA regs and put the two organizations in conflict where it wants tighter or looser application of the labeling law. This is going to have the effect of damaging the actually quite good front-of-label requirements that FDA promulgates. ayn rand hand job posted:And why it passes FDA muster is because it 1) only calls itself juice in the ingredient statement, 2) shows the entirety of the fruit makeup of the juice in a pictorial format (just not in proportion), 3) and no one drinks pomegranate/blueberry juice for its color or consistency Dude, please don't imply I'm arguing in bad faith here. Even if this were legal under FDA regs (and I don't think it is for the reasons stated above), this is a poor place for the FTC to get involved. Discendo Vox fucked around with this message at 22:46 on Jun 12, 2014 |
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Jun 12, 2014 22:38
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Kugyou no Tenshi posted:EDIT: Need it be reiterated, as Vox seems to have implied, that Pom is probably using this as part of a strategy to make a judicial challenge to the regulations that keep them from being allowed to make baseless claims about the health benefits of their products? And holy gently caress if that happens we're back to patent medicine. They got shut down on that one iirc, but they'll find another way to bring it up, or try something equally underhanded. This line of tactics is partially built on a sort of "pomegranate essentialism", that other products are falsely implying that they have greater quantities of their magical life-extending, death-cheating fruit. (life-extending and death-cheating both phrases used by POM in prior marketing). They are particularly known for running, then promoting, internal studies that have shown pomegranate basically cures everything. This led to a challenge to the two RCT rule, I'm not quite sure how that wound up. VitalSigns posted:Uh, maybe by not trying to deceive anyone? I mean, come on, it's not like Coke was trying to act in good faith here and the court is arbitrarily slapping them down over size 14 vs size 14.5 font or something. In this case, Coke was acting in good faith. The thing POM is attacking is the normal practice of most blended juice product manufacturers, because the word "flavored" is normally read to mean (and legally implies) "tastes like". There are other regs on disclosing whether or not there is any of the flavor substance in the product. What POM's done is the classic anti-regulatory move- "hey, look, these wacky technical administrative regs that you've never heard of before are leading to a result you think is counterintuitive! Let's axe 'em and get to something that's plain and clear that everyone can understand!" vvvv Ayn Rand Hand Job, I'm having trouble getting a good read on this from the regs, but doesn't having the word "Juices" on the front of label mean that it's violating the first of those three? Discendo Vox fucked around with this message at 22:58 on Jun 12, 2014 |
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Jun 12, 2014 22:51
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Kalman posted:And? Does it taste negligibly like pomegranate and blueberry? Yeah, it's looking like the flavor versus constituent thing is the source of a lot of differences in viewpoint on this.
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Jun 12, 2014 23:03
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ayn rand hand job posted:
You, um, seem to be quoting an EPA pesticide labeling reg. Again, I'm having trouble finding a clear definition for ingredient statement under FDA, which is why I'm on the fence about that part, but from what I can find in other regs language, it seems to be used as a synonym for the ingredients list. Xandu posted:Right, what is the appropriate way to label something like this? It's technically juice, presumably does taste like those flavors, what should it be called to make it clear to consumers? Well, I'm out of practice on food labeling regs, and I think there are other violations on the image we're all discussing, but give me a minute and I'll mock up what I think would be sufficiently clear, and coincidentally, legal. Behold, my lousy MSPaint skillz:  I've gotten rid of the problematic "enhanced juice" statement, resized the disclosures (Paint needs a zoom-enhance feature) and moved things, since I think there's also an intervening material issue on the order in which the elements were presented. I'm not positive about a part of the boldface requirement, either, but that's less important than the sizing. If it were up to me, those structure function claims would be gone, too. I don't have any problem with the flavor-constituent distinction, because it's explicitly stated and intuitive. People who care about the content of their fruit juice versus the taste have all of the information they need from reading the label. There's no meaningful health benefit conveyed by having more of one juice over another that can't be stated in a meaningful, regulated way on labeling if the company wants to do so. Overspecifying content regs can have the effect of implying a benefit where none exists- this is one of the big problems with organic labeling, because it functions as cipher for multiple health or externality-reducing benefits, most of them spurious. ShadowHawk posted:I'm a bit confused as to how we can say we have regulations when the standard for FDA enforcement seems to be limited to literal people dying? This is why I'd like to see the FDA budget roughly octupled. It's probably one of the most starved federal agencies- this sort of failure to enforce is actually the least depressing example of regulatory triage the FDA has had to perform. That said, if you sent in a well-presented complaint, they'd probably pursue it. The usual pattern from FDA is to first send a warning letter, which is nine times out of ten enough to get a change in the violative product. It sounds trivial, but a warning letter is Serious Business for all involved- it's basically the first step in setting up a seizure action, for example. Discendo Vox fucked around with this message at 23:35 on Jun 12, 2014 |
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Jun 12, 2014 23:14
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You're likely entirely right, I don't know that much about FTC. It's very worrisome, then, because my understanding is that there's effectively been a gentlemen's agreement between FTC and FDA in most areas, FTC's position being "we're not the people spending millions of dollars on labeling design research and laboratory testing-you guys should handle this, we'll gently caress it up". The FTC's been brought up by anti-dietary supplement groups as an avenue for stopping abusive structure function claims, but that's because FDA's hands are tied in that area. The prospect of industry using Lanham as a means to relitigate the interpretation or boundaries of FDA regs for competitive purposes is really scary. I think that the normal understanding of flavor and juices was the basis for the FDA's rule design in this area, though I'm not remotely certain. I wasn't exaggerating about the lab studies, though- FDA will likely have an evidentiary basis for consumer understanding of the terms in a commercial context. That said, the concentration of industry action in the area could make the standard a problematic one, depending on its outer edges- in the food world, industry is known for trying to force a new public understanding of the meaning of terms in order to evade regulation, making use of sophisticated and very expansive marketing pushes (a bit like the creation of the term "sport utility vehicle"). Lemme just say I really appreciate this thread. I know I'm often in a minority position here, and I'm also often wrong- I'm very grateful that it never seems to get as rhetorical or violent as some other parts of Debate Disc-Oh god, I'm proving my custom avatar right. I mean it though, my thanks to all of you, especially the ones who think I'm totes wrong. Discendo Vox fucked around with this message at 23:48 on Jun 12, 2014 |
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Jun 12, 2014 23:41
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KernelSlanders posted:Maybe I missed the part where we all ignored today's ruling, but the Supreme Court clearly said product labels need to comply with those regulations and also not be misleading under the Lanham act. As a consumer rather than marketer of juice containing products I think making the standard of deceptive something other than "whatever you can convince the FDA is ok" is a good thing for me. I'd be curious if anyone has a reasonable argument otherwise. The FDA (especially the food division) is one of the best regulatory agencies in terms of avoiding regulatory capture. This is mostly because their mandate is entirely consumer protection oriented, unlkike, for example, the USDA (this is not the case in the tobacco products division, which is why the FDA hates that they were assigned it in this way). Additionally, they've historically written regs at relatively low levels of the organization that recruit directly from the sciences, with minimal industry player involvement. That aside, the FDA bases their labeling rulemaking on research on what consumers think packaging describes, and on what information is actually important in terms of safe use of the product-they're actually going to be better equipped to identify the elements of misleading labeling than anyone else, because the labeling for FDA-regulated products has been highly determined for an extended period of time(DS and Tobacco aside). The difficulty with this ruling is that it seems to be setting the stage for industry to attack FDA regs via FTC claims- so it's less about convincing the FDA to pass regs than it is using Lanham as a cudgel to "adjust market scope"- meaning remove the competition. That's exactly what POM is trying to do with this case. Discendo Vox fucked around with this message at 01:10 on Jun 13, 2014 |
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Jun 13, 2014 00:59
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Just as a note, the HUD and most similar efforts were created under duress- it was either create them, or Congress would make the FDA create them (and sometimes Congress came in and hosed things up anyways). If the FDA does something terrible, even now, it's usually because they've been forced into it (I'm looking at you, DSHEA  ).
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Jun 13, 2014 02:36
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Dave47 posted:If the FDA is supposed to be a one-stop-shop for juice labeling regulations then why should consumer expectations of flavor dominate the process? Why not also consider consumer expectations of nutrient benefits, or of ingredients, or sugar content, or any other factor? Right, so you're probably not familiar with food and drug law. The nourish your brain stuff, like the omega 3 stuff, is a byproduct of the emergence of structure-function claims and the dietary supplement category, which, short version, the FDA is legally barred from doing anything about. It's not puffery, it's DSHEA. Industry got together and got congress to pass a law that created a category of health claims that FDA can't investigate. All the same, attacking the FDA over this, or treating it as relevant to the case in question, isn't particularly accurate or productive. If you're interested in the different categories of health claim on labeling and want to know what to get angry over, This is a good place to start. Discendo Vox fucked around with this message at 20:35 on Jun 13, 2014 |
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Jun 13, 2014 20:32
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That's not the element of the label, or the law, or the setting the case in question is dealing with. DSHEA is different legislation, with a much clearer preclusion, than other labeling laws. You're raising an entirely different part of the label.
Discendo Vox fucked around with this message at 02:06 on Jun 14, 2014 |
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Jun 13, 2014 21:56
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StarMagician posted:Exactly, I don't get why this is so complicated. It doesn't matter what the FDA's probably constantly-changing regulations say. If you don't want to be sued under Lanham, stop loving lying to your customers. Evil Fluffy posted:If the items you listed don't actually contain those things then they need to be labeled as "[whatever]-flavored" and include a little disclaiming stating the product contains no actual [whatever] in it. Subjunctive posted:This isn't about "don't actually contain", it's about proportion, and whether dominance-of-taste is more or less relevant to consumer expectation than percentage-by-volume. KernelSlanders posted:It's not. It's harmed by calling it Minute Maid Pomegranate Blueberryflavored blend of five juices from concentrate with added ingredients and other natural flavors.
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Jun 14, 2014 02:11
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He then immediately quotes Hitchhiker's Guide.  I have a new mancrush.
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Jun 20, 2014 20:27
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There's an article in The Atlantic on the decision that I think you folks might find entertaining. The crux is that the conservative justices were persuaded that what was going on was civil persuasion, not screaming and assault. I'm curious, and excited, to hear what folks think of this particular logic. Emma Green posted:If you are actually going to the clinic it's an embarrassing and emotionally difficult thing to go through even without the protesters and you just want it to be over.
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Jun 26, 2014 22:09
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ExplodingChef posted:We've learned to pretty much not bother calling even on egregious violations because the cops are just gonna huff, act like it's a huge pain in the rear end, and not end up doing anything but chastising everyone. Why do the police respond in this way?
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Jun 27, 2014 06:10
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Yeah, that's roughly the sort of thing I'm getting at. It's not that I think the police (who are not a monolithic hivemind) have a political bias, but that someone has established a policy of nonintervention on this point. It could be for any number of reasons, and they might not be political, or even wrong! But if it's a state of affairs that seems nonsensical, it's worth figuring out exactly why things are the way they are.
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Jun 27, 2014 07:05
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Based on the political tenor of GaussianCopula's other posts, I actually am not 100% sure either.
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Jun 27, 2014 18:58
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