The Relevant (Law) Review: First Installment
I will start with another admission on my part. I like being on Law Review. I will go to the ends of the earth to defend the title to the golden con law book and the honor of our legal publication. A few weeks ago, coincidentally while we were learning whether or our own articles were selected for publication, I came across a recent article in the ABA questioning the selection of articles that were being published. http://www.abajournal.com/magazine/article/the_high_bench_vs._the_ivory_tower/ The impetus of this charge centered on comments made by Chief Justice Roberts when he stated “Pick up a copy of any law review that you see, and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th century Bulgaria.” (Id…Although I feel weird about citing things in my blog)
Initially, I was slightly taken aback, as my own experiences with the Toledo Law Review didn’t quite reflect this type of esoteric scholarship that the Chief Justice alluded to. As time went on, I began to understand his point of view, although in a slightly more nuanced way. For instance, although I had every intention of writing on a pressing new legal issue, I recognized that there were instances where I was tempted to digress into issues that were (in all likelihood) only interesting to myself . Although I won’t go into my topic in depth here: picture a fantastic array of literary fireworks focusing on an emerging issue of disclaimers and unconscionability in the realm of construction contracts (fireworks added for effect, they have no bearing on my paper).
As I continued to ponder the Chief Justice’s comments I decided that his comments, however debatable they may be, might not be particularly applicable to our publication. This brings me to the topic of this blog. While sitting in front of my computer, I had a news story flash before my eyes involving a court case that had been recently decided by the U.S. District Court in Washington, involving the new tobacco regulations. I immediately clicked on the link, recognizing that the topic was one that our own Jen Thacker has spent much of the last year writing on. Enough Smoke and Mirrors!—Why the Graphic Warning Requirements under the Family Smoking Prevention and Tobacco Control Act is Speech Consumers Don’t Want to Hear, 44 U. Tol. L. Rev.__(forthcoming 2012).
In response to these criticisms leveled at legal scholarship, I have decided to write this new thread with the focus on emerging legal news that relates to the well-articulated and insightful articles that we have published, or will publish. Since Jen’s topic is very much in the spotlight and still forthcoming, I will only highlight the background to protect from any unwanted preemption issues. (a source of much fear for forthcoming articles).
The Family Smoking Prevention and Tobacco Control Act
The factual backdrop involves the new federal requirement that requires tobacco companies to place graphic images on their product packaging as a warning to consumers who use their product. I will leave it to you to search for the images online, but they are quite disturbing. There is little doubt that, given the serious health consequences, the tobacco industry is and should be a very heavily regulated industry. Tobacco companies already face heavy regulation and have been the subject of much litigation as a consequence of the harmful effects of smoking. The issue here, however, is whether the government may constitutionally compel the industry to display images that are designed to elicit an emotional response, rather than compelled speech that relays purely factual information.
The article to be published in next year’s journal takes a multi-layered approach to this topic, analyzing the various approaches that the court may take in deciding the new law. Her argument, essentially, is that by requiring this package labeling, the tobacco companies are, quite literally, forced to relay the government’s own message. While there are many avenues that the court can decide the issue on, the central theme is that by compelling this speech, the government impermissibly violated the companies’ First Amendment rights and, thus, must be struck.
The opinion offered by the District Court reached a similar conclusion and struck the law because it did not meet the rigorous standards under strict scrutiny. R.J. Reynolds Tobacco Co. v. United States Food and Drug Administration, 2012 WL 653828 (in case you were interested). While the case is going to be appealed, the topic is highly relevant to the issues that will be important on appeal. There is still much pending in this case, and great arguments both pro and contra, I believe that our Law Journal has a gem in progress. For that, cheers to Jen.