The U.S. Supreme Court this Tuesday hears oral arguments in Sorrell v. IMS Health Inc. The National Association of Manufacturers has joined the Washington Legal Foundation in filing an amicus brief urging the Court to protect First Amendment rights by striking down a Vermont law that blocks access to critical healthcare information. As the NAM’s Manufacturing Law Center summary states:

Prescription information, without patient names but with prescribing doctor information, is collected by pharmacies and aggregated. The information is ultimately sold to pharmaceutical companies, who in turn use it to target their marketing efforts. While this information is widely used for other purposes, Vermont prohibits its use in marketing prescription drugs. The information publishers and the Pharmaceutical Research and Manufacturers of America (PhRMA) challenged the law as violating their commercial speech rights, because it restricts the right to convey truthful information to others based on its content.

[The amicus brief argues] that courts should not give deference to legislative fact-finding, predictions and judgments relating to speech restrictions that are not content-neutral, but should independently assess those legislative justifications. Where speech restrictions are motivated by legislative hostility to the content of the speech, courts should not automatically defer to the legislature’s rationale. In addition, the legislature’s findings were last-minute additions that were not developed as a result of any fact-finding studies.

We also supported the view that the privacy interests in the prescribing practices of doctors should be balanced with the First Amendment rights of others. Since courts have not given as much weight to business privacy interests, particularly in the closely regulated affairs of doctors, there must be a compelling government interest to justify restrictions on the First Amendment rights of others. We argued that the law was not intended, nor does it, protect the privacy interests of doctors, since it allows a variety of other uses of the data by insurance companies, government employees, drug companies and others.

The brief is here. The Washington Legal Foundation has background material and additional briefs here. The WLF includes its activism on the case as part of its excellent project, Criminalization of Free Enterprise – Business Civil Liberties Program. Earlier this month, the WLF also sponsored a webinar, “Sorrell v. IMS Health: The First Amendment and Health Care Information Comes Before the U.S. Supreme Court.“

The U.S. Supreme Court on Monday declined to review a case that could have reined in the excessive use of contingency-fee lawyers by governments. Without comment, the court declined to grant certiorari in Atlantic Richfield et al. v. Santa Clara County.

Some cash-strapped counties and cities will no doubt interpret the court’s decision as granting them carte blanche to contract with private attorneys to carry out government lawsuits. However, these contingency fee arrangements remain an example of bad public policy that puts the law firms’ interests ahead of the public interest.

The National Association of Manufacturers joined other industry groups in filing a friend of the court brief urging review of the case. Our NAM Manufacturing Law Center entry summarized the issues, which include a due process argument:

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The American Enterprise Institute’s Legal Center for the Public Interest hosted a panel discussion Monday on the U.S. Supreme court’s rulings — past and anticipated — on business-related cases. Lots of good debate from a panel of real experts, and the entire program’s audio will be posted at AEI’s website soon.

The conventional wisdom, promulgated vigorously by the mainstream media, is that the current U.S. court is a “pro-business” court, a characterization that the panelists took issue with.

AEI Scholar Michael Greve argued that the court may appear that way because it remains the last U.S. institution that has not succumbed to populism and the spreading around of power and wealth that a prosperous society can afford.

Andy Pincus of Mayer Brown — former general counsel in the Clinton Commerce Department — said, “I don’t think the court is business friendly. I think it’s friendly to some ideas that may also be of interest to business….” For example, Pincus said, the justices are reluctant to replace Congress in the writing of laws and will therefore not find new causes of action. In addition, he contended, the justices see the jury process as a costly, inefficient and inaccurate legal process, shifting costs to parties who probably shouldn’t have been sued at all. To the extent the legal framework allows them to bring some rationality to the process, they will attempt it.

Pincus also provided the perspective of the U.S. legal system from outside.

I know in some quarters it’s heresy to talk about comparing our judicial system with the rest of the world, but in fact, if you represent ….foreign clients, and you say to them, well, you’ve just been sued, and now you have to spend some money to file a motion to dismiss. And, by the way, the way that gets decided is that the judge assumes that everything in the complaint is true, even though you know of course that many of the things are totally preposterous.

And if that’s denied, you have to spend $1 million — with electronic discovery, maybe $10 million, $100 million –  defending yourself, which you have no chance of getting back, even if at the end of the day you’re quite confident you’re entirely innocent, not liable, under whatever the claim is. In most countries of the world, that’s sort of craziness, but that’s the system we have.

Yes, it is. Which goes a long way in explaining this comparison, analyzed by the Tillinghast business of Towers-Perrin, March 2006:

The U.S. had a 2.2% ratio of tort costs to GDP, compared with Germany (1.1%), Japan (0.8%) and the U.K. (0.7%). Aside from Italy (1.7%), the other countries examined in the study have tort costs comparable to historic levels observed in the U.S. in the 1960s and 1970s.