“Odd Couple!” Nader/Public Citizen Attorney and Richard Epstein Urge Supreme Court to Hear CEI’s Tobacco Case

by Christine Hall on December 16, 2010

in Legal

“Odd couple.”  That’s how a Forbes report just described a pairing of former Nader/Public Citizen attorney Alan Morrison and University of Chicago Law School Prof. Richard Epstein.  The duo, along with Stanford Law professor Kathleen Sullivan, has filed an amicus brief with the U.S. Supreme Court in support of CEI’s constitutional challenge to the 1998 tobacco settlement.  Meanwhile, another amicus brief by prominent legal experts urges the Court to consider the settlement’s antitrust implications.

CEI has petitioned the Court to hear the case, arguing that the $200 billion tobacco deal between 46 state attorneys general and major tobacco companies violates the Compact Clause (Article I, Section 10), which requires states to get the approval of Congress for any multi-state compact.

The Morrison amicus brief argues that “the lower courts in this and other similar cases have not properly understood the meaning of the Compact Clause …  and have not understood its place in the federalism provisions of the Constitution.”

While Morrison, Epstein and Sullivan do not take a position on whether the tobacco settlement is sound public policy, they argue that the MSA is “subject to the Compact Clause and that to allow States and private companies to enter an agreement of this type and with this massive impact, without approval of Congress, threatens to create an imbalance in our federal system.”

Moreover, “that imbalance can produce serious harms to both non-participating States and the Federal Government, in addition to the economic harm to competitors of the tobacco companies that are parties to the MSA and to consumers of tobacco products.”

The second amicus brief, written by George Mason University law professors Todd J. Zywicki and Joshua D. Wright and by attorney C. Boyden Gray (counsel of record), urges the Court to hear the case due to the “wide-spread and entrenched nature of the national tobacco cartel” arising from the settlement. Specifically, the brief focuses on the question of whether state immunity from antitrust laws (known as “Parker immunity”) applies to a “cartel-facilitating arrangement with significant interstate effects.”

A third amicus brief in support of CEI’s petition was filed by Freedom Holdings, a discount cigarette producer.

Read more about the case, S&M Brands v. Caldwell, Docket no. 10-622
See: “Odd Couple Files Brief Against Tobacco Settlement,” by Daniel Fisher

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