In arguing that the President's choice of judges makes a difference in difficult cases, Sam Heldman has this to say:

The case was Insolia v. Philip Morris, and the Seventh Circuit in that case said that, when a federal court is trying to figure out a question of state law, and the answer to the state law question is unclear, the default rule should be "defendant wins." Here's the quote that I'm talking about:

Though district courts may try to determine how the state courts would rule on an unclear area of state law, district courts are encouraged to dismiss actions based on novel state law claims. … When confronted with a state law question that could go either way, the federal courts usually choose the narrower interpretation that restricts liability.

If you've had a semester of law school, you'll know why that seems absurd and unfair to me; if not, I'll just say, it's contrary to everything that the Supreme Court and every other court has said about the federal approach to state-law questions for decades, and is avowedly tilted towards defendants (who tend to be corporations, the establishment) and against the plaintiffs (who tend to be consumers/workers/injured persons). And no Sam Heldman-appointee to the federal bench would ever, ever, ever, consider signing on to an opinion that included that statement.

Well, I've had three years of law school, and I'm not sure what's wrong with what the 7th Circuit said. Yes, one could characterize the court's ruling as "when in doubt, defendants lose," but what is the alternative? When a federal court is asked to rule on a state law claim that does not even exist, what should it do -- allow the plaintiff relying on the non-existent state law claim to win?

Example: A plaintiff sues in federal court, saying that Tennessee law provides a cause of action for driving too slowly in the fast lane. Should the federal court really say, "Hmmm, let's see now, no Tennessee court has recognized such a claim, but we won't let that stop us. Judgment for the plaintiff."

What the 7th Circuit did was no different. It was presented with a claim that doesn't exist under Illinois law ("intentional exposure to a hazardous substance"), and rightly said that it could not create a new cause of action for purposes of Illinois law.

Is that biased against plaintiffs? Only against plaintiffs who invent their legal claims, as opposed to relying on actual law.