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Legal News

: Lawbeat

Totenberg and the runaway lede

By Mark Obbie

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Who can blame Nina Totenberg for trying to entice listeners to pay attention to her Supreme Court preview by looking for a device to make the very unsexy theme of this term so far -- pre-emption -- a little sexier? But her attempt at perspective on today's Morning Edition ran into some troubling facts. Here's Totenberg's lede (which differs very slightly from the text version on NPR's Web site):

While abortion and gay rights may ring people's chimes and fuel political campaigns, the fact is that Supreme Court decisions determining whether individuals have the right to sue at all, and on what grounds -- those decisions actually affect the lives of far more people, and shape the conduct of business in America.

First, I'm totally with her in spirit: that consumer and commercial cases, while less attention-getting, can have more far-ranging effects than social issues. But the facts get in the way of her making the point. The cases she alludes to, and goes on in her report to explain, won't determine comprehensively the right to sue and the conduct of business. They obviously pose much narrower questions. And what about cases (hypothetical at the moment) governing abortion or gay rights? Those, too, would almost certainly carve out pieces of those debates rather than tackling them head on. But, since we're in hypothetical territory anyway, we can assume it's possible that the Court could rule in ways that affect all women seeking an abortion, or all homosexuals. I'll bet that's a lot more people than might sue in state court over "light" cigarettes.So what is Totenberg saying here? That all people affected by the right to sue outnumber all people concerned with abortion rights and gay rights? Not likely true, and clearly not the case this term. Or is she saying that this term's pre-emption cases eclipse any abortion or gay-rights cases that might come along? Or just that they overshadow those issues on this term's docket thus far? In any case, the logic falls apart with barely a nudge. She would have been better off framing her story in simpler terms: While the presidential campaigns fret about the Court's role in social issues like abortion and gay rights, the Court's main agenda so far is on a topic far less volatile -- but critically important to many people and businesses.

Full post as published by Lawbeat on October 06, 2008 (boomark / email).