Pearlstein's "Activist" Republican Judges

Steven Pearlstein at the Washington Post has an interesting take on the recent K-Dur drug case decision by the U.S. Court of Appeals in Atlanta.

Although Schering-Plough is headquartered in New Jersey and Upsher in Minnesota, they filed their case with the conservative appeals court in Atlanta -- a blatant example of forum shopping for which plaintiffs' lawyers are often criticized. As it happened, they were lucky enough to draw an all-Republican panel of judges headed by Peter T. Fay, a Nixon appointee and one of the three judges who authorized Ken Starr to continue his witch hunt against Bill Clinton even after the Senate impeachment trial.
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Fay's idea of striking a "delicate balance" between patent and antitrust law was to decree that drug companies are free to engage in any anticompetitive behavior they like until their patents expire.

In a final, tortured bit of legal logic, Fay even argued that non-compete arrangements actually increase competition by creating an environment of "legal certainty" that encourages investment -- a loony proposition for which he offered no evidence, and which was explicitly contradicted by an FTC staff study.

The case is Schering-Plough Corp. v. F.T.C., 402 F.3d 1056 (11th Cir. 2005).