This is Bloomberg Law with June Graasso

from Bloomberg Radio.

This Trump Supreme Court just threw out

the protections

that were earned by the civil rights

movement.

Those who bled, who fought, and who died

so that people might have a voice.

>> The Voting Rights Act is considered the

crown jewel of the Civil Rights

Movement. And on Wednesday, the Supreme

Court's conservatives took a wrecking

ball to what was left of the landmark

law after having weakened it twice

before. Democratic Senator Raphael Waro

said the decision is a huge step

backwards for racial justice.

>> Make no mistake, this ruling hearkens

back to the darkest days of the Jim Crow

era. The court severely limited the use

of the Voting Rights Act, making it

difficult, if not impossible, for

minorities to challenge electoral maps

as racially discriminatory. It was a 6-3

vote with Republicanappointed justices

in the majority and Democraticappointed

justices in descent in a decision that

buttresses Republican efforts to keep

control of the House in this year's

midterms and beyond. My guest is one of

the country's leading authorities on

election law, Richard Hassan, a

professor at UCLA Law School. Rick, how

would you characterize this decision? Is

it a gamecher?

>> This is an earthquake. It is one of the

most significant decisions regarding

elections that the Supreme Court has

ever issued.

>> Tell us why. So when Congress initially

passed the Voting Rights Act in 1965, it

did things like assure that black voters

in the South would be able to register

to vote, but it didn't do anything about

the lack of political power that black

voters would have even when they do

vote, especially in situations where

white voters and minority voters prefer

different candidates. In 1982, Congress

responded to that by amending section

two of the Voting Rights Act to provide

that when white voters and minority

voters prefer different candidates and

it's possible to draw a district where

minority voters can elect their

candidate of choice under some

circumstances, states have to do that.

And from 1986, the understanding was

that this is what section two required.

What Justice Alto did in his opinion is

essentially eviscerate section two of

the Voting Rights Act, although he

claims not to overrule the test that's

been in place since 1986, the so-called

Jingles test. He does that and he

imposes a test that will be virtually

impossible for minority voters to win.

This is going to lead to many more

legislative bodies where there will be

only or mostly white representatives and

minority voters will not have fair

representation in Congress, in state

legislatures, and in local bodies like

city councils and school boards.

>> I mean, how did Justice Alo explain what

was his reasoning? So what Justice Alto

did was say that race consciousness in

law is a potential violation of the

constitution. The constitution requires

a kind of race blindness when it comes

to elections and comes to other areas.

And so in order to keep the voting

rights act constitutional, he had to

reconceptualize it to change the

standards. What he says is that when a

group of minority voters wants to show a

claim under section two, they've got to

show that if say a computer algorithm

was drawing districts by chance, they

would have had a chance to have this

district drawn to give them the

opportunity to elect a candidate of

choice. You can't be race conscious in

drawing districts. That is turning the

voting rights act on its head. Further,

he says that states can defend the

drawing of district lines that dilute

the power of minority voters by saying

they're doing it to favor their

political party. So part gerrymandering,

far from being unconstitutional, becomes

a defense to a voting rights case. And

that is profoundly ironic. It also takes

the idea that someone in Alabama could

pass a law that would favor Republicans

but not favor white voters. It just

makes no sense given the tremendous

overlap of race and party in these

cases.

>> Alto I understand when he was reading

parts of his decision from the bench

said basically don't listen to the

disscent this is not really a big deal.

I mean why do you think they kept the

voting rights act? Is it for appearanc's

sake so they could say this isn't a big

deal. Don't look here.

>> So in 2021 Justice Alto wrote a majority

opinion for the court in a case called

Bernovich versus DNC. When that case

came out, I said, "What Justice Alo has

done is essentially eviscerated the

Voting Rights Act section 2 as applied

outside of redistricting." And since

that case, as I recounted in a recent

law reviewview article that Justice

Kagan cited in her descent, there has

been no successful case under section

two since Bernovich outside of

redistricting. He's doing the same thing

here in Bernovich. He pretended he

wasn't overturning the Voting Rights

Act, but he imposed such a test. He

doesn't want to take the political heat

for overturning the act, but he

essentially renders it a dead letter, as

Justice Kagan says in her descent.

>> Justice Kagan said the decision

completes the Supreme Court's three-step

plan to eliminate the protections of the

Voting Rights Act that started in 2013

in the Shelby County case. Can you tell

us about those three steps?

>> So, there were two key parts to the

Voting Rights Act until 2013. One part,

as you mentioned, is section five of the

act that required states with a history

of racial discrimination and voting to

get federal approval before they made

changes in their voting rules. And

they'd have to show that the changes

wouldn't make minority voters worse off.

In Shelby County, in a John Roberts

opinion, the conservatives on the court

said that the formula used to figure out

which states are covered under section 5

was outdated and therefore

unconstitutional.

But the majority assured, don't worry,

there's always section two to protect

minority voters. Then came step two,

that Bernovich case where the court said

section two outside of the context of

redistricting is essentially a dead

letter. And here comes the third and

final step, which is Justice Alo in his

opinion in Cala saying, "Here's what

section 2 means now, essentially

rendering section 2 a dead letter as it

applies to redistricting. This is going

to bleach all of these legislative

bodies. It is going to make it very

difficult, if not impossible, for

minority voters to win in any of these

lawsuits.

>> Is there anything left of the Voting

Rights Act?

>> Well, there are parts of the Voting

Rights Act that survive. For example,

there's a ban on literacy tests. There

are other requirements of the Voting

Rights Act, but the two big parts of the

Voting Rights Act, section 2 and section

5, are there in a shell only, and it is

a sad day for voting rights and

democracy in the United States. and

progressive groups have calculated that

as many as 19 congressional districts

with primarily black or Hispanic

populations are at risk. I do want to

make an important point which I think

some people are missing which is that

not only will Republicans have an

incentive to get rid of these districts.

So will Democrats. Democrats will want

to take their reliable black voters and

spread them out in more Democratic

districts thereby decreasing the number

of minority opportunity districts but

still helping Democrats win their

elections. And so I think the real

losers here are minority voters and the

American people overall. If we're going

to live in a multi-racial democracy, we

need to have fair representation for all

people.

>> Republicans in the South are already

calling for new maps to be drawn because

of this decision. How do you think it

will affect the midterms?

>> It's not clear how this decision will

affect the midterms because many states

have already conducted their primaries,

and it would be unusual to go back and

redraw lines and require there to be a a

new set of primaries. But there are some

places most importantly in Florida where

they already right now considering a new

districtricting plan. They can now

consider a districting plan that doesn't

have to take into account the

requirement to draw districts that were

thought necessary under section two of

the voting rights act. And so in Florida

and maybe a few other places where they

have not held primaries, we could see

some redrawing of district lines.

>> But in 2028, we may see the full effects

of this decision. I fully expect states

like Louisiana and Alabama, if they

can't get it in done in time for 2026,

to certainly get redistricting, diluting

minority voting power in time for 2028.

>> As you know, President Trump started

this mid decade redistricting battle.

Does this decision affect the

redistricting that's been done in Texas,

California, Virginia, etc.? Are any of

those maps affected or it doesn't matter

because they were done for partisan

reasons?

>> Well, it's a hard question to answer

because partisan jerrymandering is now a

defense. And so that should render maps

drawn for partisan reasons immune from

section two claims. But I should say

that the Virginia maps, which were

recently passed by voters, may or may

not survive state court review in the

Virginia Supreme Court. And so there's

still some question marks as to exactly

what the lines are going to be for the

remaining primaries in 2026.

>> The Supreme Court has been accused more

and more of being political, though

Chief Justice John Roberts likes to talk

about, you know, we're not politicians.

Does this decision with six Republicans

on one side and the Democrats on the

other, does this make it even more

political or seem even more political?

Well, I think it's very clear that the

conservatives on the Supreme Court are

helping whether intentionally or not the

Republican political agenda. I think the

general mood of the Supreme Court is

that, you know, you can do anything for

partisan advantage and the Supreme Court

is not going to police it. And so

whether the justices honestly believe

that they're simply applying jurist

prudence or they are partisan hacks, as

Justice Barrett claimed they were not,

doesn't really matter. the effect is

going to be the same and the effect is

going to be to help the Republican

party.

>> Could Congress pass a law to get around

this?

>> Congress could pass a law revitalizing

the Voting Rights Act because this was a

matter of statutory interpretation, not

a constitutional decision. And so that

would dare the Supreme Court to actually

do something and strike it down again. I

think that this decision is going to

lead to more calls for Supreme Court

reform because it's pretty clear what

the political direction of the majority

of the court is and it's quite a

partisan direction.

>> You've written that this is the worst

Supreme Court ruling in a century.

Explain why.

>> Well, when it comes to voting rights,

section two was really revolutionary in

assuring we could have a more

multi-racial democracy. and the Supreme

Court by turning the Reconstruction

Amendments on their head and making race

consciousness, which Congress required

in section two, something that is

constitutionally

suspect. What the court is going to do

is going to change the nature of

political representation in this

country, bringing us back to a time well

before the passage of the Voting Rights

Act amendments in 1982.

>> It's been great having you on, Rick.

Thanks so much. That's Professor Rick

Hassan of UCLA Law School. Coming up

next, James Comey is indicted for a

second time. I'm June Grao and you're

listening to Bloomberg.

The Justice Department has indicted

former FBI Director James Comey for the

second time in 7 months. This time based

on an Instagram post from a year ago of

seashells on a beach arranged in the

numbers 8647.

The government claims that amounts to a

threat against President Trump, the 47th

president. And Trump told reporters this

week that Comey's post probably put his

life in danger.

>> 86. You know what 8? It's a mob term for

kill him. You know, you ever see the

movies? 86 him. The mobster says to one

of his wonderful associates, 86 them.

That means kill him. Comey said at the

time of the post that he assumed the

numbers reflected a political message

and he deleted the post when he learned

some people were interpreting it as a

call to violence. The first indictment

against him on unrelated false statement

and obstruction charges was dismissed by

a judge because the interim US attorney

had been improperly appointed. Comey

says he's innocent of these charges as

well. Well, they're back. This time

about a picture of seashells on a North

Carolina beach a year ago. And this

won't be the end of it. But nothing has

changed with me. I'm still innocent. I'm

still not afraid. And I still believe in

the independent federal judiciary. So,

let's go.

>> It's a barebones two-page indictment.

And even Republican Senator Tom Tillis

said he hopes the Justice Department has

more evidence. I searched to the end of

the internet last night. I can't find

one example where the number 86 had

anything to do with any um violent

threat. So, uh hopefully there's more to

it than just the picture in the sand.

>> Joining me is former federal prosecutor

Robert Mintz, a partner McCarter in

English. Bob, the term 86 is ambiguous.

Is it going to be a challenge for

prosecutors to prove that this was even

a threat? So the first question that any

juror or judge is going to ask when they

take a look at this case is to focus on

what does 8647 mean. You have to go back

and take a look at the original

derivation of the term 86. And

apparently the prevailing view is that

it started somehow in the restaurant

business and it really had to do with

the fact that an item on the menu was no

longer available or that a customer at a

restaurant was going to be asked to

leave the restaurant. And it's only

recently that it's come up in a

political context. One of the most

prominent use of the term 86 in the last

several years was back in February of

2024 when at the time Representative

Matt Gates of Florida posted we've now

86 McCarthy McDaniel McConnell which was

apparently a reference to Kevin McCarthy

losing his House Speakership, Republican

National Committee Chair Ronda McDaniel

leaving her role and Senator Mitch

McConnell announcing he would step down

as majority leader. So, we've seen the

term 86 used in a political context,

sometimes meaning to get rid of a

political leader. Here, the government

apparently is going to try to convince a

jury ultimately that this was a

statement by former director Comey to

incite violence against the president.

And when he said 8647,

he was arguing that the president should

be assassinated. That's really the heart

of what this prosecution will ultimately

be about.

>> And what's the standard of proof here?

>> Yeah. So, this is a very high legal

standard. In this case, Mr. Comey was

charged under a statute that

criminalizes the act of knowingly and

willfully making any threat to take the

life of, to kidnap, or to inflict bodily

harm upon the president of the United

States. And the second count in the

indictment criminalizes making those

threats through interstate

communications. But the real question is

what did Mr. Comey intend when he posted

that Instagram photo? He claims that it

was political speech and that he had no

intention to do violence or to try to

incite anybody else to do violence. So

prosecutors here are going to have to

overcome not only the common sense

definition by Mr. Comey's outright

denial that he intended to threaten the

president.

>> Let's talk about possible defenses.

Comey's lawyer said, "We look forward to

vindicating Mr. Comey and the First

Amendment."

>> Well, I think there's going to be a

whole host of defenses here. First and

foremost, I think is this first

amendment question because there is a

long history here of the courts

interpreting that statute and weighing

it against first amendment rights. The

original Supreme Court case of

Brandenburgg versus Ohio held that

constitutional guarantees of free speech

and free press don't permit a law to

forbid or prescribe advocacy of the use

of force or of law violation except in

limited circumstances where the person

making a statement is inciting or

producing imminent lawless action. In

other cases, even more recently made it

even harder to bring these cases. So

these types of threat cases are always

viewed through the lens of first

amendment rights. And the most recent

case, the one that really is the binding

precedent right now, set the threshold

even higher in 2015. It was actually an

opinion written by Justice Roberts. And

it concluded that the mindset of the

person who made the comment must be

considered. It's not enough for the

subject of a comment to view it as a

threat. the person who made it must have

intended it that way. So, they have to

get inside of Jim Comey's head and try

to argue that he intended this as a real

threat to the president. And one of the

things that's going to be interesting

here is when you look at the indictment

that's brought and it's very bare bones.

It does not have much information in it

at all, but it does cite to certain

language which was read before the grand

jury if things were done here as they

typically are. And the standard that was

read to the grand jury was that Mr.

Comey knowingly and willfully made a

threat to take the life or inflict

bodily harm upon the president. And then

they talk about the photograph and they

say which a reasonable recipient who was

familiar with the circumstances would

interpret as a serious expression of

intent to do harm to the president of

the United States. I expect that one of

the first things the defense is going to

do is argue that the presentation before

the grand jury was tainted because that

standard that I just read was a standard

from a case that had been overruled by

the more recent case of 2015 that said

that you have to look beyond what the

reasonable recipient would interpret

from those comments. You also have to

specifically look at what the speaker

meant when they made those comments. I

think the defense is going to argue that

the grand jury was given improper legal

advice was they were given the improper

legal standard when they returned that

indictment. So, that will certainly be

one of the issues that I think we'll see

raised by the defense.

>> And Bob, there's that case from 1966

over the draft that really illustrates

how the First Amendment interest is

weighed in these threat cases. These

types of cases which may appear on their

face to be simply threats against the

president could also be viewed as

political speech. This very statute was

interpreted in a case called Watts

versus United States. And in that case,

a protester was convicted for saying if

they ever make me carry a rifle, the

first man I want to get in my sights is

LBJ. A reference to President Johnson at

the time. that individual was convicted,

but it made its way to the Supreme Court

where the court said that that was

political hyperbole rather than a true

threat and thus not within the

prohibition of this statute. So, it's an

example of just how specific and how

imminent these threats have to be and

why the courts have at least

traditionally looked at this kind of

language as political language rather

than a call to violence. And in this

case, I think it's going to be an uphill

battle for prosecutors to prove that

this was not political speech, that this

was an actual imminent threat made by

James Comey against the president.

>> Comey's lawyer told the judge that

they're going to challenge the case by

claiming a vindictive and selective

prosecution. So, not only is this the

second indictment against Comey, but

according to Bloomberg sources, federal

prosecutors are pursuing additional

charges against Comey for allegedly

leaking classified information.

>> They will try to argue that the Justice

Department already pursued a case

against Mr. Comey less than a year ago,

which was ultimately dismissed by a

judge based upon the finding that the

prosecutor at the time was not properly

appointed. So, they're going to try to

argue that this is just another attempt

by the Trump administration to go after

one of Mr. Trump's perceived enemies,

James Comey, and that there's really no

merit to this case, that this case

should not have been brought in the

first place, and that at best this is a

politically veiled attempt to try to go

after Mr. Comey after having failed with

the other prosecution. Many commentators

have noticed a pattern where acting

attorney general Todd Blanch, who used

to be Trump's personal criminal lawyer,

seems to be pushing to bring cases

against Trump's perceived political

enemies, and they're very thin. For

example, the one recently against the

Southern Poverty Law Center. Many say

he's trying out for the role of attorney

general.

>> Well, he has made statements directly

addressing the evidence in the case. He

understands what the legal standard is

and he is saying that the government has

additional evidence that will prove

beyond a reasonable doubt that Mr. Comey

intended that photograph as a threat

against the president. We haven't seen

that evidence yet, but prosecutors have

an ethical duty to bring cases only if a

reasonable jury could convict based upon

that high standard of beyond a

reasonable doubt. So just getting the

indictment doesn't mean there's enough

evidence to ultimately gain a

conviction. And that's a situation where

prosecutors have to look at the case and

even though they know they could go into

a grand jury and get that grand jury to

indict based upon the lower legal

standard, they have an ethical

obligation not to bring the case if they

know that the evidence is insufficient

for a reasonable jury to convict

ultimately on that higher beyond a

reasonable doubt standard. At this

point, it's hard to see how prosecutors

could look at the evidence that's on the

record and argue that a reasonable jury

could find that Mr. Comey intended this

as a threat. There's too much ambiguity

in the statement. There's too much

ambiguity in terms of his conduct. That

in and of itself is reasonable doubt.

And on the defense side, that's all you

have to show. You just have to show that

the government did not prove its case

beyond a reasonable doubt. and

prosecutors are going to have to come up

with additional evidence if they hope to

get this case to trial and have any

chance of winning.

>> Do you think a judge might dismiss the

case before it goes to trial?

>> I do think that's a possibility and I

say that knowing that it is exceedingly

rare for judges to dismiss a criminal

case before it goes to a jury. All

prosecutors have to do is get an

indictment properly before a grand jury.

The indictment has to allege the

elements of the crime and that is enough

to get the case beyond motion practice

and in front of a jury. In this case, I

think there is a reasonable possibility

that a judge is going to look at this.

Number one, they're going to look at the

legal standard that was included in the

indictment. And if that was deficient or

misleading or incorrect, that's one

basis that this could be dismissed. and

then the judge still may look at this

case and try to decide if there's enough

evidence that a reasonable jury could

actually convict. Now, the defense

lawyers here could do one of two things.

They could immediately challenge the

indictment as legally insufficient.

Another thing they could do is they

could move for a bill of particulars,

which is a way the defense team could

say to the prosecution, "We want more

information, more details about what

evidence supports this indictment." I'm

sure the defense is going to act quickly

here as they did last time. Thanks so

much, Bob. That's Robert Mintz of

McCarter and English. Coming up, Bayer

has a tough time at the Supreme Court.

I'm June Graasso and this is Bloomberg.

Bayer has faced a title wave of

litigation alleging that its Roundup

weed killer causes cancer and resulting

in some stunning multi-billion dollar

jury verdicts. In a case before the

Supreme Court this week, a jury had

awarded a Missouri man $1.25 million

after finding that Bayer failed to warn

him about possible cancer risks. Bayer

argues that federal law bars the lawsuit

because US regulators didn't require a

cancer warning. Its attorney, former

solicitor general Paul Clement, put it

simply. The EPA regulation and the

government's brief here makes crystal

clear that a registrant cannot change

the safety warnings on a pesticide label

without approval of the agency. Thus,

Missouri law here requires something

that not only is not required by federal

law, but that federal law doesn't even

allow.

>> The questioning during the oral

arguments didn't follow the usual

ideological lines. For example, when

liberal justice Elena Kagan questioned

the plaintiff's lawyer Ashley Keller

about how these lawsuits for failure to

warn could be squared with a provision

in federal law requiring uniformity in

herbicide labels and Keller denied that

the lawsuit would undercut uniformity.

Conservative Justice Brett Kavanaaugh

pushed back.

>> Just to be simple-minded about this, Mr.

color. You have a preeemption provision

that's labeled uniformity that's clearly

designed to achieve uniformity in

labeling. And what uniformity would your

regime achieve?

>> Uniformity in law.

>> You think it's uniformity when each

state can require different things?

>> I don't think each state can require

different things. The law has to be

uniform. So if Missouri law was in

addition to or different,

>> it's the labels illegal in one state and

legal in another state. That's

uniformity.

>> But Chief Justice John Roberts, a

conservative, question the notion that

states worried about cancer risks should

have to wait for the EPA to decide

whether to require a label change.

>> Well, it does undermine the uniformity.

I appreciate that. On the other hand, if

it turns out that they were right, it

might have been good if they had an

opportunity to do something to call this

uh danger to the attention of the um

people while the federal government was

going through its its process.

>> The litigation has already cost Bayer

more than $10 billion and the company is

looking for an endgame. My guest is an

expert in mass tort litigation,

Elizabeth Burch, a professor at the

University of Georgia Law School. She's

the author of the new book, The Pain

Brokers, about a mass tort litigation

scam. Beth, this was one of the first

cases that went to trial against Bayer,

right?

>> Yes. So, this was a state court case

coming out of Missouri. And, you know,

this is one of quite a few verdicts that

have been decided against Bayer,

although not all of them have gone that

way. And at the moment, Bearer is also

trying to negotiate a class action

settlement in state court, which is

ironic for any number of reasons, but

you know, this is one of those pressure

points. The idea being, hey, you'd

better settle with us in state court,

otherwise your claims might be

diminished in terms of their value if

this is a decision that goes our way.

>> Put this into the context of the massive

litigation against Bayer. There have

been a couple of really eyepopping

verdicts of more than$2 billion dollars

for a single plaintiff.

>> Yes, there have. So, this litigation has

been going on for a number of years now.

Uh, it is centralized in California in

front of Judge Chabria at the federal

MDL level. There are a number of state

court cases that are also pending and

bear has really been looking for some

sort of endgame and way out to this.

This is certainly a piece of that in

front of the Supreme Court. Although,

you know, even a win in front of the

Supreme Court wouldn't kill all of the

lawsuits. It would make them more

difficult to proceed certainly on the

failure to warrant claims. But the

plaintiffs have also brought defective

design claims. So, this has really been

a thorn in the side of Bear for years

now.

>> Tell us about the main issue in this

case. Well, the issue that is in front

of the Supreme Court right now is a

question about preeemption. And it is in

some ways a fairly narrow question of

preeemption that's based on this

pesticides act. And it's a question

about whether the federal law can

preempt state law decisions on failure

to warrant claims.

>> So Bayer says that the federal law

preempts the state law. What's the

response of the plaintiff?

>> You know, the plaintiffs are making a

number of arguments. I think the one

that is most intuitive is that once the

EPA approves a particular label, things

can happen and things can change. So,

you know, in this case, the label was

approved more than a decade ago and

there is some evidence that there is a

link between glyophosphate, which is the

key ingredient in Roundup and Mhodkkins

lymphoma that has been at the heart of

this controversy for a number of years.

The World Health Organization has said

that there is a possible carcinogen and

glycosphate. The EPA has been more

reluctant to embrace that decision. And

so, you know, the big question is, well,

what about emerging science? You know,

if it turns out that you have a label

that's approved many, many years behind,

isn't there some sort of responsibility

on part of the company to keep up with

the science and to continue to warn

consumers when there is a change in that

science? In all these cases, questions

about glyco phosphate's connection to

cancer are part of the litigation.

>> There is different scientific support on

one side versus the other. And this is a

question right now in front of the

courts about whether there is general

causation between exposure to

glyophosphate and how much and the

development of non-hodkkins lymphoma.

Again, there's a significant latency

period here. It can be you know 14 15

years between the exposure and the

development of cancer. So there's all

sorts of general causation questions

which is can glyophosphate cause this

particular disease and then specific

causation questions which is did it

cause this particular plan on Hodkins

lymphoma

>> and the Trump administration has sort of

embraced glyophosphate

>> you know it's interesting so the Trump

administration has very much embraced

glyophosphate but it is something that

is dividing the Trump base you know

Robert Kennedy for a number of years

actually represented plaintiffs against

Monsanto. And a key piece of the Make

America Healthy again is to reduce the

use of pesticides like glycophosphate.

And so there were a number of protests

out in front of the Supreme Court that

included Maha supporters who were

protesting against the use of Roundup.

>> So from the oral arguments, it seemed

like the justices were divided. Yeah, I

mean they certainly seem divided and it

didn't fall neatly along conservative

liberal lines. So, you know, you had

some justices who you would have thought

might be supportive of Bayer who in fact

were less supportive of Bear than you

might imagine and then you had a number

of the liberal justices who were

actually not seeming like they were in

favor of Bear. So, it'll be interesting

to see what this opinion ultimately

yields because it doesn't have the kind

of clear lines that we often expect

among these types of hot button issues.

>> And what do you make of the chief

justice suggesting that states

considering new evidence that a product

is risky should be allowed to call this

danger to the attention of the people? I

mean, I think that goes back to if there

is new and emerging evidence, does that

mean that the hands of the company are

tied that they can't warn consumers

that, hey, uh, you might need to have

some sort of personal protective

equipment or, hey, this might have some

sort of link to cancer because the EPA

has already sort of put that in place.

The flip side of all this is that there

is evidence that a number of companies

even in light of old EPA warnings have

changed their own labels. And so, you

know, that came up in some of the

questioning saying, well, you know,

companies are doing this all the time.

Why should it tie the hands of companies

if this is what they're doing already?

And so, that was kind of one of the the

points of contention that came up. and

tell us about questions of uniformity in

the law which justices Kagan and

Kavanaaugh quiz the plaintiff's attorney

on.

>> I mean I think the question is is this

an instance in which you really want

uniformity in the law and you want

uniform law to preempt what the states

are doing. And so, you know, if you have

California saying you need to warn, we

think that there is some sort of link

between glyophosphate and non-hodkkins

lymphoma, does that mean that you have

to put a label in California and nowhere

else in the United States? Do you have

this sort of stateby-state regulatory

scheme or do you have federal

preeemption and telling you what has to

be there? And it seems like there's also

this sort of related question of how

much can a company do even in the wake

of the EPA not requiring it, you know,

so can you go ahead and put a label on

there saying, "Hey, we're worried this

might cause cancer even if the EPA

doesn't require you to do it."

>> And farm groups filed briefs in support

of Bayer, arguing that a uniform

standard is better than a patchwork of

state rules. I get the sense that the

farm community is split. I mean there

were a number of the Maha supporters who

were concerned about farmers and about

you know farmers exposure to the use of

Roundup and I think many of the farmers

echoed that. The flip side is that you

know they find that it is a very

effective weed killer and so you know

this is something that many of them want

to continue using. So, I don't think

there's uniformity in, hey, all farmers

want this or all farmers don't want

this.

>> Bloomberg intelligence litigation

analyst Holly from said the arguments

went poorly for Bayer and changed her

view. She now thinks the majority of

justices will find state law failure to

warn claims are not preempted by federal

law. So, a loss for Bayer and consumers

can pursue these claims. Yeah, I think

it it's really hard to say. I don't

think the argument was as clearly in

favor of Bear as many people had

expected it to be. So, in that regard,

you know, it was a bit of a blow to

Bear. I think their stock felt it

doesn't mean that it won't ultimately be

decided in Bear's favor, but it didn't

go as many people were predicting it

would. Could the decision here affect

the medical device, cosmetic, and food

industries that are governed by laws

similar to the one at the center of the

Bayer case?

>> You know, it's hard to say without

seeing how broadly or how narrowly the

Supreme Court decision is written.

Traditionally, the Supreme Court has

only decided what it has to decide. And

you know, there's this question of okay,

well, if they decide this about the

pesticide act, what does it say about

the Food Drug Cosmetic Act, etc.

Certainly, it would be potentially

persuasive in other areas, but again,

depending on how broadly or how narrowly

written it is, it certainly doesn't

carry the day in other acts.

>> Well, it's going to be very interesting

to see if the decision cuts across

ideological lines as well. Thanks so

much, Beth. That's Professor Elizabeth

Burch of the University of Georgia Law

School. And that's it for this edition

of the Bloomberg Law Show. Remember, you

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