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Wednesday, May 18, 2016

Ind. Decisions - Judge Posner's separate concurring opinion today in a Wisconsin case

The case is USA v. Shontay Dessart. The panel is Posner, Easterbrook and Sykes. Judge Sykes authors the opinion affirming the district court. Judge Easterbrook concurs. The opinion concludes on p. 15-16:

Dessart raises two complaints. First, he argues that the instruction should have included the definition in subsection (B). We don’t see why. The evidence did not show—and the government never argued—that Dessart’s products qualified as “prescription drugs” because they were approved as such by the FDA. Second, Dessart argues that the instruction should have included the definition of “prescription drug product” found in 21 U.S.C. § 379g. Again, we don’t see why. Section 379g is part of the Prescription Drug User Fee Act of 1992, a discrete statutory scheme that collects user fees to help fund the FDA’s review and approval of new drug applications. By its terms § 379g provides that its definition of “prescription drug product” applies “[f]or purposes of this subpart” only. There was no instructional error. AFFIRMED

[Judge Posner's concurring opinion begins on p. 17:]

I agree with the decision but have reservations about some of the verbal formulas in the majority opinion. I do not criticize the majority for reciting them, because they are common, orthodox, even canonical. But they are also inessential and in some respects erroneous, and on both grounds ripe for reexamination. * * *

To repeat what I said at the outset, I don’t disagree with the decision to affirm the district court. I disagree merely with the rhetorical envelope in which so many judicial decisions are delivered to the reader. Judicial opinions are littered with stale, opaque, confusing jargon. There is no need for jargon, stale or fresh. Everything judges do can be explained in straightforward language—and should be.

ILB: Incidentally, respected federal circuit Judge Sykes is on Donald Trump's list today of potential Supreme Court candidates.

Posted by Marcia Oddi on May 18, 2016 02:21 PM
Posted to Ind. (7th Cir.) Decisions